CK Heating Ltd v Doro

When assessing whether to reduce unfair-dismissal compensation for a claimant’s conduct, the tribunal must focus on the claimant’s own conduct. Under sections 122(2) and 123(6) of the Employment Rights Act 1996, it must not treat the employer’s separate contractual fault as a reason to avoid the reduction.

The relevant questions include whether the claimant’s conduct was culpable or blameworthy and whether it caused or contributed to the dismissal. Where those requirements are met, the tribunal must then determine the just and equitable reduction by reference to the statutory provisions and the claimant’s conduct.

The claimant, an apprentice plumber, was provisionally selected for redundancy during a downturn in the employer’s business. He later refused an instruction to sweep the employer’s yard. The employer treated the ensuing exchange as a resignation, but the Employment Tribunal found that he had been unfairly dismissed.

The Tribunal initially reduced the basic and compensatory awards by 30 per cent. After remittal following earlier procedural litigation concerning its power to revisit that decision, it declined to make the reduction, reasoning that the employer had been in fundamental breach of the apprenticeship contract and could not require performance.

The employer appealed. The central issue was whether the Tribunal was entitled to take the employer’s contractual conduct into account when deciding whether the claimant’s conduct justified a reduction.

1. The appeal was allowed. The Tribunal’s decision dated 30 March 2011 was altered so that the 30 per cent reduction originally decided upon was restored. The compensatory award was therefore reduced from £4,442.50 to £3,109.75.

2. Sections 122(2) and 123(6) of the Employment Rights Act 1996 require the Tribunal, when considering a reduction for conduct, to focus on the claimant’s conduct. There is no entitlement under those provisions to look beyond that conduct to the employer’s alleged contractual fault. The Tribunal had erred by concentrating on whether the employer was entitled to require the claimant to sweep the yard.

3. The material inquiry was whether the claimant’s conduct was culpable or blameworthy and whether it caused or contributed to the dismissal. On the Tribunal’s findings, the claimant knew only that he was being instructed to carry out work, did not assert that the employer lacked authority to instruct him, persisted in refusing despite being told that other work would be available later, and thereby acted stubbornly and difficultly.

4. That conduct was culpable and plainly caused the dismissal. The Tribunal’s initial conclusion to reduce the awards by 30 per cent was therefore correct. Its later reliance on the employer’s alleged fundamental breach was a matter to which it should not have had regard for this statutory assessment.

• Employment Appeal Tribunal: The appeal from the Employment Tribunal’s decision dated 30 March 2011 was allowed, and the original 30 per cent reduction was reinstated.
• Employment Tribunal: The Tribunal initially decided to reduce the awards by 30 per cent. Following an earlier Employment Appeal Tribunal decision on 30 July 2010, the matter was remitted for reconsideration; the Tribunal then declined to make the reduction.