EAT Unfair Dismissal : Contributory Fault – Unfair dismissal – compensatory award – reduction for conduct/contributory fault – ERA 1996 sections 122(2) (basic award) and 123(6) (compensatory award)
The ET had originally found that the Claimant (a bus driver who was asked to undertake remedial driving training and assessment) had been dismissed for a reason related to her conduct (her refusal to obey a reasonable instruction and insubordination). The EAT had set that decision aside and remitted for the case for consideration as to the reason for dismissal given the Respondent’s approach on the internal appeal. At the remitted hearing, the ET concluded that the fact that the Claimant was given a further opportunity to attend the training and assessment meant her conduct was no longer the principal reason for dismissal on appeal; in confirming the decision to dismiss, the appeal panel principally had in mind the Claimant’s inability to pass the driving assessment once she had attended the driving school; that was a reason related to capability, which had not been raised with the Claimant and this, together with the failure to allow a further attempt to pass the assessment (contrary to the Respondent’s policy) rendered the decision to dismiss unfair. There was no appeal from that finding.
At the subsequent remedies hearing, the ET considered both the basic and compensatory awards should be reduced by 75 per cent, given the Claimant’s earlier conduct in refusing to obey a reasonable instruction and insubordination. Allowing that any reduction in the compensatory award was dependent upon the Claimant’s conduct having caused or contributed to her dismissal, the ET was satisfied it had: the decision on her internal appeal was only made given the fact she had earlier behaved in such a way as to warrant dismissal. The Claimant appealed.
Held: dismissing the appeal
The ET had correctly distinguished the tests required by sections 122(2) and 123(6) Employment Rights Act 1996. It was entitled to find the Claimant had behaved in a blameworthy or culpable way prior to her dismissal such as to mean it was just and equitable to make a reduction in the basic award pursuant to section 122(2). Given the particular facts of the case, the ET was also entitled to find a causative link between the Claimant’s culpable conduct and the ultimate decision to dismiss (that being the decision on her internal appeal). The focus was on the Claimant’s conduct, notwithstanding that the principal reason for the dismissal at that stage was one related to her capability. This was not a case where there was no link between the earlier conduct and that which informed the final decision to dismiss (Nejjary v Aramark Ltd UKEAT/0054/12 distinguished). The ET had been entitled to view the appeal decision in context, which included the Claimant’s earlier misconduct.
Eady QC HHJ
 UKEAT 0166 – 16 – 3110
England and Wales
Updated: 27 January 2022; Ref: scu.572666