EAT Unfair Dismissal : Compensation – Contributory fault
PRACTICE AND PROCEDURE – Costs
A Tribunal found that the conduct of an employee, for which he was unfairly dismissed, was such that there should be no award either basic or compensatory. An appeal that this was wrong on the basis that a 100% deduction for contributory fault could only be made from a compensatory award where the conduct was solely causative of the dismissal was rejected, since there was no material to suggest that the unfairness (which was procedural) had causally contributed to the dismissal; as was an argument that the decision was perverse. An argument that despite the accepted approach since Devis v Atkins it was not open to a Tribunal completely to extinguish any basic award by reliance on contributory conduct was rejected: neither principle, nor case-law, nor statutory interpretation supported it. However, in the light that it will be a rare case in which conduct is so bad as to deprive a long-serving employee of any compensation at all, despite his employer having treated him unfairly, the Tribunal ought to have said what its reasons were for holding that it was just and equitable for compensation to be reduced to nil (observations of Mummery LJ in Moreland, and when giving leave in Perkin v St.George’s relied upon). Accordingly, the case would be remitted to the Tribunal for redetermination of this point.
A cross-appeal, arguing that since the Tribunal had determined on balance of probabilities that the claimant had lied about his conduct, it had therefore to be taken that he had advanced his tribunal claims unreasonably, and costs should follow, was rejected: there was no absolute principle to this effect, a Tribunal had a discretion even if unreasonable conduct were shown, and this tribunal had committed no error of law.
Judges:
Langstaff P J
Citations:
[2013] UKEAT 0253 – 12 – 2703
Links:
Jurisdiction:
England and Wales
Employment
Updated: 17 November 2022; Ref: scu.473018