Jinadu v Docklands Buses Ltd

Under Employment Rights Act 1996, section 122(2) permits a just and equitable reduction of the basic award for an employee’s blameworthy pre-dismissal conduct without proof that the conduct caused the dismissal. Section 123(6), by contrast, requires a causal contribution to the dismissal, although the conduct need only be a contributing factor and need not be the sole or principal cause.

The contributory-fault inquiry focuses on what the employee actually did, rather than on the employer’s assessment of that conduct. A capability dismissal does not prevent a reduction where earlier culpable conduct remained causally connected to the ultimate dismissal decision. An appellate decision must be assessed in its full factual context.

The Claimant, a bus driver, was initially dismissed for refusing a reasonable instruction to attend remedial driving training and for insubordination. An earlier appeal to the Employment Appeal Tribunal resulted in the original tribunal decision being set aside and the case being remitted.

On remission, the Employment Tribunal held that the operative reason for dismissal on the internal appeal was capability, namely the Claimant’s failure to pass a driving assessment. It found the dismissal unfair because that capability case had not been put to her and she had not been offered a further assessment opportunity under the Respondent’s procedures.

At the remedies hearing, the Employment Tribunal reduced both the basic and compensatory awards by 75 per cent for contributory conduct. The issue on this appeal was whether the earlier misconduct could justify those reductions, particularly where the final reason for dismissal was capability.

1. Appeal dismissed. The Employment Tribunal was entitled to reduce both awards by 75 per cent. It correctly distinguished the separate tests in sections 122(2) and 123(6) of the Employment Rights Act 1996.

2. For the basic award, section 122(2) required the Tribunal to determine whether the Claimant’s pre-dismissal conduct was blameworthy and whether a reduction was just and equitable. It did not require a causal relationship between that conduct and the dismissal. The Claimant’s refusal to obey a reasonable instruction and her insubordination were permissible findings of culpable conduct relevant to that assessment.

3. For the compensatory award, section 123(6) required a causal link between culpable conduct and the dismissal. The focus was on the employee’s actual conduct, not on the employer’s conduct or on the fairness inquiry. The conduct need only have caused or contributed to the dismissal to some extent; it need not have been the direct, sole or principal cause.

4. The Tribunal was entitled to find that link here. The Claimant’s misconduct produced the original dismissal and the internal appeal. The appeal panel’s decision to give her a final opportunity for training and assessment arose in that context. Although her later failure of the assessment was the principal reason for the ultimate capability dismissal, the earlier misconduct remained a causative contribution. The appeal panel’s unfair failure to allow a further opportunity did not sever that connection.

5. This was therefore unlike Nejjary v Aramark Ltd, where the earlier conduct had no causal link to the dismissal. The percentage reduction was a fact-sensitive assessment for the Employment Tribunal. No error of law or perversity was shown.

• Employment Appeal Tribunal — the present appeal was dismissed: [2016] UKEAT 0166_16_3110.
• East London Employment Tribunal — at the remedies hearing, reduced the basic and compensatory awards by 75 per cent for contributory conduct.
• East London Employment Tribunal, on remission — found the dismissal unfair because the operative appeal-stage reason was capability and the Respondent had not fairly followed its capability process.
• Employment Appeal Tribunal, earlier appeal — set aside the original liability decision and remitted the case for findings on the reason for dismissal at the internal appeal stage.