Wainwright & Cummins v Snowdon

A reduction of the basic or compensatory award for contributory conduct requires conduct by the employee which is blameworthy and which caused or contributed to the dismissal. An appellate tribunal will not interfere where the Employment Tribunal has, on the evidence, found no such conduct.

Unpaid holiday pay may be pursued as an unauthorised deduction from wages under the Employment Rights Act 1996. A timely complaint concerning the last of a series of deductions can encompass the earlier deductions in that series. An Employment Appeal Tribunal will ordinarily refuse a new appellate argument which requires factual findings not sought below, particularly where remittal would be unjust.

The employee succeeded before the Employment Tribunal in claims for unfair dismissal, holiday pay and failure to provide written terms. The Tribunal awarded £23,775.68.

The employers appealed on two grounds. They contended that the awards for unfair dismissal should have been reduced for the employee’s conduct during an incident shortly before dismissal. They also contended that holiday pay could not be recovered for a period extending beyond one year before dismissal. The latter contention depended on whether there had been a timely series of deductions, an issue not clearly raised before the Tribunal.

1. Appeal dismissed. The Employment Tribunal’s reasons were not wholly clear, but its findings could properly be understood as finding no blameworthy conduct by the employee capable of justifying a reduction in either the basic or compensatory award.

2. For the compensatory award, Employment Rights Act 1996, s.123(6) required conduct which caused or contributed to dismissal. The pleaded case was only that the employee had responded vociferously when asked to answer a telephone. On the Tribunal’s findings, following almost six years without complaint, that incident did not amount to blameworthy conduct. The EAT could not substitute findings of fact for those of the Tribunal.

3. Unpaid holiday pay falls within the statutory concept of a deduction from wages. Under ss.13 and 23 of the Employment Rights Act 1996, a complaint presented within three months of the last deduction in a series may reach the preceding deductions. Whether there was a timely final deduction depended on factual matters which the Tribunal had not been asked to determine.

4. Applying Glennie v Independent Magazines (UK) Limited, [1999] IRLR 719, the EAT held that it was too late to advance that fact-dependent limitation argument for the first time on appeal. It would be unjust to require a remitted hearing to investigate it. Both grounds were refused.

• Employment Appeal Tribunal: appeal dismissed.

• Employment Tribunal: found for the employee on the contested claims and made a monetary award of £23,775.68. The judgment under appeal is not otherwise cited in the judgment.