EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Contributory fault
Compensation
Mitigation of loss
Employment Tribunal decided that when determining penalty for misconduct (accessing personal records without authorisation, contrary to a number of policies) the employer had thought that the only mitigation which could reduce sanction from dismissal to a lesser penalty would be that which established that the Claimant did not know what she was doing when she accessed the documents. The mitigation (as presented) did not go that far. Accordingly, because the employer had not given any weight at all to that mitigation, and had not explored medical issues with the Claimant though there was reason to do so, the ET held that dismissal was outside the range of reasonable responses. It was held entitled to do so, but that it erred in law by holding that although the Claimant had admitted knowing that she should not access the records, and accepted she had done wrong, nonetheless as a matter of fact she did not know what she was doing was a breach, and therefore ought to be excused any finding of contribution. The ET had made inconsistent findings, had failed to consider what the Claimant ought to have known, had not considered the effect of the Claimant saying (misleadingly) to her employers that she had been guilty of misconduct, having changed her account from one of denial of misconduct to one of acceptance, had not sought authorisation to access the records, nor had she made any referral for the investigation of fraud by others although claiming that was what motivated her actions.
In a preliminary hearing on a linked appeal, the employer sought to argue that the ET erred by concluding that a lifetime pension loss could be attributed within s.123 ERA to its actions in dismissing the Claimant, and that the ET erred in concluding that the Claimant had mitigated her loss. Held that these findings were open to the ET.
In the result, the issue of contributory fault was remitted to a new Tribunal, in the light of the clear views the ET had expressed, in the light of which its impartial objectivity might be questioned.
Langstaff P J
[2013] UKEAT 0573 – 12 – 1505
Bailii
England and Wales
Employment
Updated: 18 November 2021; Ref: scu.514161