Conduct Contribution to Dismissal

Hello and Happy New Year to you all! We trust, like us, you have enjoyed and indulged over the Christmas holidays, hopefully the roast dinners, mince pies and steady supply of booze have not had any adverse effects.

Some of you may have given something up for the New Year; chocolate, alcohol, meat, carbs and slobbing out. These are all vices that, when given up, may make you feel that you have less freedom than you did a few weeks ago. If you do feel that way then today’s case about employee imprisonment may resonate with you. And with that I have failed my resolution to quit making tenuous links.

To compensate for a lack of carbs there are three questions today:

What does an employer do if an employee is imprisoned due to a criminal conviction?

Can a tribunal find a dismissal to be unfair but reduce the compensation by 100%?

Can an employee who has contributed to their own dismissal be reinstated?

Mr Carter, the Claimant, was employed by Aulds Bakeries Ltd, the Respondent, from 2005 until October 2014. However, his last working day was in September 2013 when he was convicted of dangerous driving and sentenced to 6 months in prison. The Claimant’s wife informed the Respondent of this and requested if holiday could be taken, however neither she, nor the Claimant, made any request for authorised or unpaid leave to cover the full length of the conviction.

Upon the Claimant’s release in November 2013 he was told he could not come back to work. The Claimant appealed this decision and the Respondent initially rejected this because the Claimant’s absence had caused his employment contract to become frustrated. It then allowed the appeal after the Claimant submitted his unfair dismissal claim.

The appeal took some time due to the unprecedented nature of the scenario, there were also many flaws in the procedure. However the decision to dismiss was upheld as the Claimant had not disclosed the length of time he would be absent or agreed an authorised absence.

The claim went to hearing and the ET stated that the initial dismissal in November 13 was not fair. No procedure had been followed. The Respondent argued that the subsequent appeal hearing rectified this issue but the ET disagreed and held that the dismissal was unfair.

The ET then considered what remedy would be appropriate. The Claimant had appealed for reinstatement, however, despite no objection from the Respondent, the ET rejected this proposal. The ET felt that reinstatement would be impractical as the Claimant had contributed to his dismissal by being imprisoned and not effectively communicating this absence with the Respondent. The ET also reduced both the basic and compensatory award by 100% for the same reason.

The Claimant appealed and the EAT accepted the appeal. It held that as the Respondent had not objected to reinstatement then the ET’s decision is not relevant. It went on to say that the ET had not justified its decision to deduct 100% of the awards and despite there being evidence to support the decision the ET needed to fully explain this.

Today’s takeaway points

If an employee is sentenced to prison the best thing for the employer to do is treat it as an absence issue. In this case the Respondent should have sent numerous warnings to the Claimant about unauthorised absences then proceeded to dismiss when he continued to be absent. See our piece about footballer Ched Evans as a high profile case study of this issue.

A dismissal can be unfair but not be awarded any compensation. If the dismissal is unfair but the Claimant’s conduct is the sole reason for the dismissal then the tribunal could deduct all compensation if it is just and equitable to do so. In many cases the award is often partially reduced due to either contributory fault or polkey.

Finally if a Claimant proposes reinstatement then the ET will have to consider whether:

–          the employee wants to be reinstated

–          it is practicable for the employer to comply.

–          it would be just to make either type of order where the employee’s conduct caused or contributed to some extent to his dismissal

However if the first two criteria are met and the Respondent has no objections then a reinstatement could be upheld.