The Employment Appeal Tribunal (EAT) has found that a compensatory award does not necessarily need to be reduced where there is a finding of contributory fault on the part of the employee.
With unfair dismissal cases the basic and compensatory award can be reduced if the Claimant’s conduct is found to be a contributory factor. A recent judgement however from the EAT has clarified this is not a legal requirement and the Employment Tribunal has total discretion when reducing an unfair dismissal award on the ground of contributory negligence.
In Notaro Homes Ltd v Keirle and others [2024] EAT 122, the Claimants were employed by Notaro Ltd (Notaro), which operates registered care homes. They were all dismissed for breaching Notaro's social media policy. Claims were brought in the Employment Tribunal (ET), based on arguments that the employees had been unfairly dismissed for making multiple protected disclosures.
The Employment Tribunal (ET) concluded that the disclosures were protected and the breach of social media policy was used by Notaro as a cloak for the dismissals. The ET agreed that the Claimants had breached the company’s social media policy but held that making the protected disclosures was the principal reason for the dismissal.
In an unfair dismissal case, the basic and compensatory award can be reduced if the Claimant’s conduct is found to be contributory. However, when deciding on compensation, the ET concluded that it would not be just or equitable to reduce the amount on the grounds of contributory fault. It was noted by the ET that Notora “seized” the opportunity to dismiss the Claimants because they had blown the whistle. Additionally, the individual on behalf of the Notaro involved in the dismissal admitted that breaching the social media policy did not amount to gross misconduct or warrant dismissal.
On appeal, the Employment Appeal Tribunal (EAT) agreed. It stated that the only way the Claimants’ conduct contributed to the dismissal was to provide a pretext to fire them for whistleblowing.
Although this decision clarifies that the ET has total discretion when reducing an unfair dismissal award on the grounds of contributory negligence, it would be unusual for it not to do so. The decision reiterates that even if an employee’s actions contribute to their dismissal, this does not automatically guarantee a reduction in any compensatory award which they may receive in a successful Tribunal claim.
