Hello and welcome back to your weekly case law update. Last week was our November newsletter which had features on a film about the gig economy, political leaders being tribunal witnesses and Samantha Cameron’s unpaid internships.

Before beginning this week’s update, a huge thank you to everyone who attended our seminar yesterday. We hope everyone enjoyed the sessions and took away some actionable insights that they can incorporate into their processes.

To everyone who has requested products or services in the feedback forms, we will be in touch. Anyone interested in a copy of the slides can contact us to request them. Finally, with the seminar concluded, we will no longer bombard you with information. However, based on attendee and client feedback, we aim to host another session next year with seminars becoming a more regular occurrence moving forward. So it is goodbye but not farewell!

Our case this week concerns unfair dismissal and deduction for contributory fault. For the initiated there are two types of deduction that can be applied to a successful Claimant’s remedy; Polkey and contributory fault.

A Polkey deduction is based on the case of Polkey v AE Dayton Services Ltd whereby a Claimant’s compensatory award will be reduced based on the likely percentage they would have been dismissed fairly had a fair procedure been followed. For example, an employee who is dismissed on the spot for punching someone, would likely have an 100% deduction applied to their compensatory award on the basis that they would have been dismissed anyway if the disciplinary procedure was followed.

A contributory fault deduction is applied to the basic award and reduces the award based on the percentage the employee contributed to their own dismissal. For example, an employee who is dismissed for theft could have their entire basic award deducted on the basis that their theft greatly contributed to their dismissal.

Based on the above, the question this week is:

Can an act of misconduct that is not gross misconduct lead to a deduction for contributory fault?

Mr McCambridge, the Claimant, was a concept artist for Jagex Ltd, the Respondent, who designed internet based computer games. The Claimant had six years’ service and a clean disciplinary record.

There was discontent amongst the Respondent’s employees about the difference in pay between developers and executives although the exact salaries of the Respondent’s executives was not common knowledge.

The Claimant found a document in one of the Respondent’s communal which contained a visa application for a relative of one of the Respondent’s executives. The document also included the executive’s salary. The Claimant placed the document in the in-tray for printed documents that had yet to be filed. Prior to this another employee, Mr Heath, had seen the pay document in the printer but had not moved it.

After the document was not collected, the Claimant mentioned it to a colleague. This was the only person the Claimant told about the executive’s pay. Word quickly spread around amongst the Respondent’s staff and a guessing game of higher or lower to determine the executive’s pay was played during lunch by some employees, including Mr Heath. After lunch, two employees, one of whom was Mr Heath, raised the issue of pay impacting morale. During this time the document was still in the printing tray.

The following day the Claimant was called into an investigation meeting with the Respondent to discuss an allegation that disclosing pay data was a misuse of confidential information. The Claimant was disciplined and ultimately dismissed for gross misconduct. The Respondent used the same person as both investigating and dismissing officer.

The Claimant, believing his conduct was not an act of gross misconduct brought claims for unfair and wrongful dismissal. The claims were allowed by the ET who held that the act was not an act of gross misconduct and as such no Polkey or contributory fault deductions should be made from the Claimant’s award.

The Respondent appealed stating that some deduction should be applied due to the Claimant’s conduct. The EAT allowed the appeal but only in relation to a contributory fault deduction for the basic award. The ET was wrong to find that only gross misconduct could contribute to dismissal. Whilst not GM, the disclosure of pay data was a misconduct offence and this ultimately contributed to the dismissal. The issue was referred back to the ET to determine what percentage the award should be reduced by.

The takeaway point:

Yes, an act of misconduct that is not gross misconduct can result in a deduction to a claimant’s tribunal award. This is because the act, whilst perhaps not enough to warrant summarily dismissal could be sufficient to dismiss with notice and thus contributes to the dismissal.

This case also shows the importance of proper disciplinary procedures, not using the same person for investigation and appeal. Our previous case law update was how not to guide in disciplinaries and did mention the roles of employers staff should be defined and limited to one role in the process only!