Unfair Dismissal – Contributory Fault – Polkey Deduction
CONTRACT OF EMPLOYMENT – Wrongful dismissal
The Claimant was summarily dismissed after finding a document that had been left on the communal printer which contained the salary of a senior employee and telling a few colleagues about it. Although the Claimant was not responsible for any wider dissemination of the information, it was embarrassing for the Respondent when the level of the executive’s pay became more generally known in the office.
The Claimant succeeded in his claims of unfair and wrongful dismissal. No deduction for either contributory fault or a Polkey reduction was made and the matter was adjourned for a remedy hearing. The Respondent appealed the wrongful dismissal finding and the Tribunal’s refusal to make a reduction in respect of both Polkey and contributory fault.
Held: There was no error in the Tribunal’s approach to the construction of the contract and its finding that the Claimant’s behaviour did not constitute gross misconduct. There was no express term of the contract that salary information was confidential, and nor could it be implied into the contract. In any event, even if it had been, the Tribunal was entitled to find that the Claimant had not breached clause 14 concerning confidential information.
Nor had the Tribunal either misdirected itself or failed to follow its direction on the correct approach to Polkey. The Tribunal found the decision to be substantively, as well as procedurally, unfair. The tenor of the Reasons when read overall is that no reasonable employer would, or could fairly, have dismissed the Claimant for what he did. In a case such as this there is no need for a Tribunal to embark on a detailed discussion of Software 2000 or the line of authorities such as King v Eaton (No.2) [1996] IRLR 199 and Scope v Thornett [2007] IRLR 155. This was not a redundancy selection exercise, but a substantively flawed decision where the Tribunal found that the Respondent had wrongly sought to make an example of the Claimant to cover their own discomfiture and had been exceptionally heavy handed. It is inherent in its decision that fair procedures would not have made the dismissal fair and the Tribunal has sufficiently answered the questions posed in the approach recommended in paragraph 54 of Software 2000.
However the Tribunal had erred in considering a contributory fault reduction could only be made if the Claimant had committed an act of gross misconduct, which was too high a threshold. The correct test is to consider if the conduct was culpable, blameworthy, foolish or similar which includes conduct that falls short of gross misconduct and need not necessarily amount to a breach of contract Nelson v British Broadcasting Corporation (No. 2) [1980] ICR 110.
The issue of contributory fault is remitted back to the same Tribunal (applying the factors in Sinclair Roche and Temperley and Others v Heard and Anor [2004] IRLR 763, to be determined at the forthcoming remedy hearing.
Citations:
[2019] UKEAT 0041 – 19 – 1109
Links:
Jurisdiction:
England and Wales
Employment
Updated: 14 October 2022; Ref: scu.646846