Lambert v Vicomte Bernard De Romanet Ltd

An employment tribunal may make a 100 per cent reduction in compensation for unfair dismissal where the employee’s conduct wholly caused the dismissal, even though the dismissal itself was unfair. The question under section 123(6) of the Employment Rights Act 1996 is the extent to which the employee contributed to the dismissal, rather than the extent to which the dismissal was unfair. Separately, misleading an employer about relevant medical history may make it just and equitable to award no compensation under section 123(1). Where either basis produces a nil compensatory award, it is unnecessary to calculate loss or consider a statutory uplift.

The claimant had been employed by the respondent and was absent through illness for approximately 16 months. The respondent attempted repeatedly to discuss his absence and medical position, but he did not respond to those enquiries. It treated his employment as ended after warning him that his failure to respond indicated that he had chosen to leave.

The Employment Tribunal found the dismissal automatically unfair under section 98A(1) of the Employment Rights Act 1996, and substantively unfair because the respondent had not properly investigated the medical position. It nevertheless awarded no compensation for loss of earnings, relying on the claimant’s misleading account of his medical history and his failure to keep the respondent informed. The claimant appealed against the nil compensatory award.

1. Appeal dismissed. The Tribunal’s reasons, read as a whole, supported both its section 123(1) conclusion and its section 123(6) contribution finding.
2. The Tribunal was entitled to conclude that the claimant’s failure to disclose his previous medical history made it not just and equitable to award compensation. Full disclosure might have meant that he was not employed or that his prolonged absence would have been managed differently. The distinction between this issue and contribution to dismissal was material, as explained in Devis & Sons Ltd v Atkins [1977] ICR 662 (HL).
3. The claimant’s failure to respond to proper enquiries about his health contributed to the dismissal. The relevant question under section 123(6) of the Employment Rights Act 1996 was whether, and to what extent, his conduct contributed to the dismissal, not whether it contributed to the unfairness of the dismissal.
4. A finding of 100 per cent contribution was permissible. The claimant had been able to correspond about an expenses claim but had not responded to the respondent’s enquiries about his health. The Tribunal was entitled to find that this non-cooperation caused the dismissal, although the dismissal remained unfair. Ingram v Bristol Street Parts UKEAT/0601/06 was considered and followed.
5. Because either finding was capable of producing a nil compensatory award, the Tribunal did not need to calculate the claimant’s loss or consider the statutory uplift under section 31 of the Employment Act 2002. That approach was different from a case involving a deduction of less than 100 per cent, such as Digital Equipment v Clements No 2 [1997] ILR 140.

• Employment Tribunal: found the dismissal automatically and substantively unfair, but awarded no compensatory sum apart from £300 for loss of statutory rights, together with a basic award.
• Employment Appeal Tribunal: dismissed the claimant’s appeal against the nil compensatory award.