The EAT judgment in Dr S Langston v Department for Business Enterprise and Regulatory Reform reminds us of the circumstances when a Tribunal can make deductions from basic and contributory awards for unfair dismissal on the grounds that the Claimant contributed to the dismissal.
In this case, the finding of unfair dismissal was not in dispute. The subject of the appeal was the decision of the Tribunal to award no compensation.
The relevant statutory provisions are section 122(2) and 123(1) and (6) Employment Rights Act 1996. These provide for a reduction of both the basic and compensatory award where there has been contributory fault where it is ‘just and equitable’ to do so (the test being slightly different in both cases).
The main authorities on this point include Nelson v BBC (No2) and Gibson v British Transport Docks Board which state that is is necessary for a Tribunal when making a reduction in a compensatory award to make findings of ‘culpable or blameworthy conduct’. If matters said to contribute to a dismissal are outside the person’s control then whey cannot be said to be culpable or blameworthy.
The test in respect of a basic award is different but it is well established that there must also be some element of culpability or blameworthiness.
In this case, the Tribunal did not address the question , to what extent contributory conduct is within the control of the employee, or is blameworhty or culpable. The case has therefore been remitted to Tribunal for reconsideration of this point.