Department For Work And Pensions v Coulson

An employer may act outside the range of reasonable responses where it treats mitigation as irrelevant unless it wholly excuses misconduct, and fails to investigate medical material capable of affecting the appropriate sanction. A finding that misconduct is serious or gross under an employer’s policy does not itself make dismissal reasonable.

For contributory fault, the tribunal must make its own assessment of culpable or blameworthy conduct. Subjective ignorance of an employee with relevant training and experience will rarely, without more, preclude culpability. Compensation for lost earnings and pension may remain attributable to dismissal where reasonable alternative work pays less or has no comparable pension provision.

The claimant, a long-serving Department for Work and Pensions manager, was dismissed for accessing relatives’ personal records without authority. She said that she had acted because she suspected benefit fraud and wished to protect her son. The Employment Tribunal held the dismissal unfair because the disciplinary and appeal officers effectively disregarded mitigation unless it showed that she did not know what she was doing, and did not investigate medical evidence.

The Tribunal made no deduction for contributory conduct. In a linked remedy appeal, it held that loss of earnings and a continuing pension loss were attributable to dismissal, and that the claimant had reasonably mitigated her loss by becoming a foster carer.

The Department appealed the unfair-dismissal, contribution and remedy rulings. The central issues were whether dismissal fell outside the range of reasonable responses, whether the claimant’s conduct was contributory, and whether the compensation findings were open to the Tribunal.

1. Appeal allowed in part. The unfair-dismissal finding stood. The appeal against the finding of no contributory fault was allowed and that issue was remitted to a newly constituted Employment Tribunal. The proposed appeal on remedy was rejected.

2. The Tribunal had not impermissibly substituted its own view for that of the employer. It had directed itself correctly and was entitled to find that the disciplinary decision-makers treated mitigation as incapable of affecting sanction unless it established total lack of understanding. That was not a real consideration of mitigation. It was also entitled to hold that a reasonable employer should have made further enquiries into medical evidence suggesting that the claimant’s mental health might have affected her actions.

3. The Department’s policies properly stressed the seriousness of unauthorised access to confidential records and contemplated dismissal. But labelling conduct gross misconduct did not prevent dismissal from falling outside the range of reasonable responses. The material question was whether mitigation had actively been considered, not whether it had merely been recorded in a dismissal letter.

4. The conclusion that there was no contributory conduct could not stand. A contribution assessment required the Tribunal to decide for itself whether the claimant’s conduct was culpable or blameworthy. Its findings were internally difficult to reconcile, did not address what a trained and experienced employee ought to have known, and did not fairly address her changing account to the employer. Subjective lack of awareness of a policy will rarely make misconduct wholly non-culpable in such circumstances.

5. The remedy findings were open to the Tribunal. Dismissal was the starting point for loss of earnings and pension. A lower-paid, non-pensionable role could mitigate rather than extinguish loss. The Tribunal could find that the claimant reasonably became and remained a foster carer, particularly as the employer produced no evidence of suitable alternative work. Future pension loss remained subject to later quantification and any appropriate offset.

• Employment Appeal Tribunal: Allowed the Department’s appeal only on contributory fault, remitting that issue for a fresh hearing before a new Tribunal. It rejected the challenge to unfair dismissal and refused the proposed remedy appeal.
• Employment Tribunal, East London: By reasons delivered on 18 December 2012, upheld the claimant’s unfair-dismissal complaint and made no deduction for contributory conduct.
• Employment Tribunal: At a remedy hearing, including a decision dated 19 September 2012, held that the claimed earnings and pension losses were attributable to dismissal in principle and that the claimant had reasonably mitigated loss.