Prior v City Plumbing Supplies Ltd

For a reduction for contributory conduct in an unfair-dismissal award, the tribunal must identify culpable conduct and find a causal link between that conduct and the dismissal. The link is to the dismissal itself, rather than to the employer’s unfairness in dismissing. Once those matters are established, the percentage reduction is for the tribunal’s just and equitable assessment and will be disturbed on appeal only exceptionally.

Reasons need only enable the parties to understand why they won or lost when the judgment is read as a whole. However, a tribunal commits an error of law if it gives no reasons for refusing a live application for reinstatement or re-engagement.

The claimant, a driver, was imprisoned after breaching a restraining order. His employer dismissed him on the mistaken basis that the imprisonment had frustrated his contract. The Employment Tribunal held the dismissal unfair, reduced the basic and compensatory awards by two-thirds for contributory conduct, and refused re-engagement. Compensation was agreed at £6,050.29.

The employer did not challenge the unfair-dismissal finding. The claimant appealed the contributory-fault reduction and the refusal of reinstatement or re-engagement. The central issues were whether the imprisonment was culpable conduct causative of the dismissal, whether the Tribunal had adequately explained the reduction, and whether its unreasoned refusal of re-engagement could stand.

1. Appeal allowed in part. The appeal against the two-thirds reduction for contributory conduct was dismissed. The appeal against the refusal of reinstatement or re-engagement was allowed and remitted to the same Employment Tribunal, if practicable.

2. The Tribunal had sufficiently identified the culpable conduct as the claimant’s imprisonment following his breach of the restraining order. Its reference to an overturned customer-warning showed that it had excluded that matter from the contributory conduct. The earlier difficulties were context, not additional culpable conduct.

3. The Tribunal was entitled to find causation. The imprisonment was the catalyst for dismissal. The employer’s erroneous reliance on frustration, and therefore the unfairness of its dismissal, did not prevent the claimant’s proved blameworthy conduct from causing or contributing to the dismissal. Once culpability and causation were established, the two-thirds assessment was a matter for the Tribunal’s just and equitable judgment. No error of principle or perversity was shown.

4. The reasons for the contributory reduction, read with the findings as a whole, adequately informed the parties why they had won or lost. They did not have to be fuller.

5. By contrast, the Tribunal gave no reasons at all for declining re-engagement, which was an undisputed live issue. That was an error of law. Rather than seek supplementary reasons through the Burns/Barke procedure, the EAT remitted reinstatement and re-engagement for a fresh decision with reasons. The Tribunal was to determine the appropriate form of hearing after consulting the parties.

• Employment Appeal Tribunal: Allowed the appeal only as to reinstatement or re-engagement, remitting that issue for a fresh reasoned decision.
• Employment Tribunal, Reading: Reasons sent on 22 June 2011. Held the claimant unfairly dismissed, reduced his awards by two-thirds for contributory conduct, and declined re-engagement.