Allen v Queen Mary University of London

In assessing compensation for unfair dismissal, an Employment Tribunal must address separately the statutory tests for reduction of the basic and compensatory awards. For contributory conduct, it must identify the conduct, determine whether it was blameworthy, determine whether it caused or contributed to the dismissal, and then decide what reduction is just and equitable.

A 100 per cent reduction in a compensatory award is permissible only if the employee’s conduct was wholly responsible for the dismissal. It remains necessary to decide whether extinguishing the award is just and equitable. A Polkey assessment should ordinarily precede contributory fault and requires a predictive assessment of the chance of a fair dismissal.

The Claimant, a university professor, was summarily dismissed after refusing an instruction to teach a course. The Employment Tribunal found the instruction reasonable and the Claimant’s refusal blameworthy, but held the dismissal unfair because the employer had failed to consider its prior removal of all his pre-sabbatical teaching and its handling of his grievance in the disciplinary process.

The Tribunal nevertheless found that the Claimant had contributed to his dismissal by 100 per cent and made neither a basic nor compensatory award. He appealed that finding, alleging legal error and perversity. The central issue was whether the Tribunal had lawfully applied the statutory rules on contributory conduct and compensation.

1. Appeal allowed. The perversity challenge failed. There was ample evidence on which the Employment Tribunal could find that the Claimant deliberately disregarded a written management instruction.

2. The Tribunal erred in its treatment of compensation under Employment Rights Act 1996. It did not analyse separately the question whether it was just and equitable to reduce the basic award under section 122(2), and the causation and just-and-equitable questions governing the compensatory award under section 123(1) and (6).

3. For section 123(6), the Tribunal had to identify the employee’s conduct, decide whether it was blameworthy, decide whether it caused or contributed to dismissal, and then assess the just and equitable reduction. A 100 per cent reduction required the Claimant’s conduct to be wholly responsible for dismissal. Even then, extinguishing compensation was not automatic and required reasons for that rare course.

4. The Tribunal’s serious findings against the employer, including that its conduct could have justified a constructive dismissal and that its failure to consider that conduct rendered this dismissal unfair, were irreconcilable with an unexplained finding that the Claimant was wholly responsible. The Tribunal’s finding that he disobeyed a reasonable instruction justified some reduction, but not its 100 per cent conclusion.

5. With both parties’ agreement, the Appeal Tribunal determined compensation issues itself. Applying Polkey first, it assessed a 25 per cent chance of a fair dismissal. It then found blameworthy conduct that contributed to dismissal and made a further one-third reduction in both awards. Any remaining compensation issues were remitted to a freshly constituted Employment Tribunal.

• Employment Appeal Tribunal: Allowed the Claimant’s appeal against the 100 per cent contributory-fault reduction and substituted reductions of 25 per cent on Polkey grounds and one third for contributory conduct.
• Employment Tribunal, East London: By judgment dated 3 June 2015, found the dismissal unfair but held that the Claimant had contributed to it by 100 per cent and made no basic or compensatory award.