Department for Work and Pensions v Coulson

In deciding whether dismissal for misconduct fell within the range of reasonable responses, an employer had to give genuine consideration to relevant mitigation. It could not treat mitigation as relevant only if it wholly excused the misconduct. Where medical material indicated that the employee’s health might have affected the conduct, a reasonable employer might need to investigate it further.

For contributory conduct under section 123 of the Employment Rights Act 1996, the tribunal had to assess whether the employee’s conduct was culpable or blameworthy. A trained, experienced employee could not ordinarily avoid such a finding solely by asserting a subjective lack of awareness that conduct breached the employer’s policies.

Loss of earnings and pension may remain attributable to dismissal where reasonable alternative work pays less or provides no comparable pension.

The claimant, a long-serving Department for Work and Pensions manager, was dismissed after accessing relatives’ personal records without authorisation. She said that she suspected benefit fraud and wished to protect her son. The Employment Tribunal upheld her unfair-dismissal complaint. It found that the Department had disregarded mitigation unless it showed that she did not know what she was doing, and had not pursued medical evidence indicating that her mental health might have affected her conduct.

The Tribunal made no deduction for contributory conduct. In a separate remedy decision, 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 conclusions. The central issues were the range of reasonable responses, contribution under section 123, causation of pension loss, and mitigation.

1. The appeal was allowed only on contributory fault. The finding that dismissal was unfair stood. The issue of contributory conduct was remitted for a fresh hearing before a new Employment Tribunal. The proposed remedy appeal was rejected.

2. The Tribunal had not impermissibly substituted its own view for that of the employer. It had applied the correct approach and was entitled to find that the Department had not genuinely considered mitigation. The decision-makers treated mitigation as incapable of affecting dismissal unless it established that the claimant did not know what she was doing. An employer does not consider mitigation by disregarding its possible relevance in every other context.

3. The Tribunal was also entitled to regard the failure to investigate the GP’s letter as material. The letter raised the possibility that the claimant’s mental health had affected her actions. The Department could not reasonably decide sanction by discarding mitigation and failing to make further inquiry. The seriousness of misconduct under a disciplinary policy did not make dismissal automatically fall within the range of reasonable responses.

4. The no-contribution finding could not stand. Applying Nelson, contributory conduct requires culpable or blameworthy conduct, which may include sufficiently unreasonable, foolish or perverse conduct. The Tribunal had made inconsistent findings and had not considered what the claimant ought to have known, her training and experience, her failure to seek authority or report suspected fraud, and her changed account to the employer. Subjective ignorance of policy will rarely, if ever, make misconduct wholly non-culpable where an experienced and trained employee was capable of performing the job.

5. A new Tribunal was required because the original Tribunal’s expressed views could reasonably cause its impartiality to be questioned. The remittal was confined to contribution; unfairness and Polkey were not open for reconsideration.

6. The Tribunal was entitled to find that the claimant’s continuing pension loss was attributable to dismissal. Reasonable lower-paid work mitigates, but does not necessarily extinguish, the loss from dismissal. The foster-carer role was not pensionable. The Tribunal was also entitled to find reasonable mitigation, particularly as the Department had adduced no evidence of available alternative work.

• Employment Appeal Tribunal: Allowed the Department’s appeal on contributory conduct only. It remitted that issue to a newly constituted Employment Tribunal and rejected the proposed remedy appeal.
• Employment Tribunal: By reasons delivered on 18 December 2012, upheld the claimant’s unfair-dismissal complaint and made no deduction for contributory conduct. In a remedy decision dated 19 September 2012, it determined issues of principle concerning loss and mitigation.