Unfair dismissal: Employee conduct shouldn’t always impact compensation

When looking at unfair dismissal compensation, employers often argue that the conduct of the employee has contributed to their dismissal. In fact, the Employment Rights Act 1996 makes it clear that contributory conduct by an employee can have an impact on the level of compensation awarded.

Unfair dismissal compensation is focused primarily on actual losses, mainly loss of earnings. The sum can be reduced by the tribunal if an employee’s poor conduct was a contributing factor in the dismissal. How much can this reduction be? By ‘such proportion as is just and equitable’ (s123(6) Employment Rights Act 1996).

No need to reduce compensation, even if conduct was an issue

In the recent case of Keirle and others v Notaro Homes, the Employment Appeal Tribunal was asked, can ever be ‘just and equitable’ to make no deduction even if contributory fault has been found.

In this case, several employees were dismissed because of social media posts they had shared. The employees said they had made protected disclosures and claimed automatic unfair dismissal on grounds of whistleblowing.

The employment tribunal agreed that the employees had made blameworthy social media posts. However, they felt that the real reason for their dismissal was whistleblowing, which would be automatically unfair grounds for dismissal. The social media posts were just the “cloak for the dismissals”. Their claims succeeded.

At remedy stage, the tribunal didn’t apply any reduction to the compensatory award. The employer appealed, arguing that they must make some reduction if the dismissal was related to poor conduct.

The EAT rejected the appeal, saying that though a finding of contributory conduct usually results in some reduction to the compensatory award, there is no legal requirement that there must be a reduction. The tribunal decided that no reduction at all was just and equitable in this case.