British Gas Trading Ltd v Price

For contributory fault under section 123(6) of the Employment Rights Act 1996, the question is whether the employee’s culpable conduct caused or contributed to the dismissal. A tribunal must not confuse that issue with the separate question whether an employer’s procedural or substantive failings caused the dismissal to be unfair.

Under section 122(2), no causal link is required for a basic-award reduction. The tribunal must instead focus on the employee’s pre-dismissal conduct and decide whether, and to what extent, a reduction is just and equitable. Employer failings do not remove the need to address that conduct.

The claimant, a customer service adviser with an unblemished disciplinary record, was summarily dismissed after confronting a colleague at work, attempting to grab his shirt and accidentally catching his chin. The Employment Tribunal found that she had engaged in culpable misconduct and that conduct was the reason for dismissal. It nevertheless held that the conduct had not caused or contributed to the dismissal because the employer had unfairly failed to take proper account of mitigation.

The Tribunal made no reduction to either the compensatory or basic award. British Gas appealed, contending that the Tribunal had confused causation of dismissal with causation of unfairness and had failed properly to address the statutory tests for contributory fault.

1. Appeal allowed. The Employment Tribunal erred in concluding that the claimant’s culpable conduct had made no contribution to her dismissal. Its findings established that her misconduct was the reason for dismissal and had led to the disciplinary process.

2. Section 123(6) of the Employment Rights Act 1996 concerns causation of the dismissal, not causation of its unfairness. The statutory question is whether the employee’s blameworthy conduct caused or contributed to dismissal to any extent. It is ordinarily a mixed question of law and fact, assessed broadly and with common sense. In some cases an evaluative judgment may be needed as to whether the conduct was an effective legal cause or whether dismissal was its direct and natural consequence.

3. The employer’s serious failure to consider mitigation could contribute to the dismissal and make it unfair. It did not, on the findings made, extinguish the claimant’s admitted and culpable misconduct as a contributing cause. At best, the Tribunal had identified two contributing causes. It was a non sequitur to infer from the fact that a fair employer might have imposed a final warning that the misconduct made no contribution to dismissal.

4. Section 122(2) contains no causation requirement for a reduction of the basic award. Its discretion is nevertheless directed to the employee’s conduct before dismissal and to whether that conduct makes a reduction just and equitable. The Tribunal’s erroneous approach to section 123(6) infected its treatment of that distinct discretion.

5. The extent of contribution and any just and equitable reductions remained evaluative matters. The case was remitted to the same Employment Judge, to be dealt with alongside the outstanding remedy issues.

• Employment Appeal Tribunal: appeal allowed in [2016] UKEAT 0326_15_2203. The questions of reduction for contributory conduct were remitted to the same Employment Judge.
• Employment Tribunal: Employment Judge Davies, in Reasons sent on 7 July 2015, found the dismissal unfair and made no reduction to the compensatory or basic awards for contributory conduct.