Jagex Limited v McCambridge

For contributory-fault reductions under the Employment Rights Act 1996, conduct need not amount to gross misconduct or a contractual breach. The tribunal must decide whether the employee acted culpably, blameworthily, foolishly or similarly, then apply the distinct statutory requirements of causation and justice and equity.

A Polkey reduction is not required where the tribunal has found the dismissal substantively unfair and its reasons, read as a whole, show that fair procedures could not have made dismissal fair. Contractual confidentiality provisions must be construed in their factual setting. Salary information cannot be implied to be confidential merely because an employer has not disclosed it.

The claimant, a lead concept artist, was summarily dismissed after he found a visa application containing a senior employee's salary on a communal printer and told several colleagues about it. The Employment Tribunal held that he had been unfairly and wrongfully dismissed. It found no gross misconduct, made no Polkey or contributory-fault reduction, and adjourned remedy.

The employer appealed the wrongful-dismissal finding, the refusal of a Polkey reduction, and the refusal to reduce the basic and compensatory awards for contributory fault. The central issues were the construction and application of the contractual confidentiality clause, whether a fair process could have produced a fair dismissal, and the threshold for contributory conduct under sections 122(2) and 123(6) of the Employment Rights Act 1996.

1. Appeal allowed in part. The appeal against the findings of wrongful dismissal and against the refusal of a Polkey reduction was dismissed. The appeal on contributory fault was allowed and remitted to the same Employment Tribunal.

2. The Tribunal made no error of law in construing the confidentiality provisions. The contract did not expressly identify salary as confidential and such a term could not be implied by business efficacy, officious bystander, or necessity. In its factual setting, the Tribunal was entitled to find that colleagues were not relevant third parties, gossip was not use for the claimant's own purposes, and the information had entered the workplace public domain after being left at the printer. Alternatively, any breach was not sufficiently serious to amount to gross misconduct.

3. The Tribunal correctly made no Polkey deduction. Its reasons had to be read as a whole. It had found the dismissal substantively as well as procedurally unfair, because no reasonable employer could fairly dismiss for the conduct concerned. Fair procedures therefore could not have made the dismissal fair. The Tribunal had adequately addressed the predictive exercise described in [2007] IRLR 568.

4. The Tribunal erred by treating gross misconduct as a necessary gateway to a reduction under sections 122(2) and 123(6) of the Employment Rights Act 1996. The correct threshold is culpable, blameworthy, foolish or similar conduct. It may fall short of gross misconduct and need not be a contractual breach.

5. The same Tribunal must determine whether the claimant's conduct was culpable; whether it caused or contributed to dismissal for the compensatory award; and, if so, whether it is just and equitable to reduce either award and by what amount. The remittal could conveniently be determined with the outstanding remedy issues.

• Employment Appeal Tribunal: Allowed the employer's appeal only on the contributory-fault issue and remitted that issue to the same Tribunal.
• Employment Tribunal, Bury St Edmunds: In a reserved judgment dated 14 March 2018 and sent to the parties on 17 May 2018, held that the claimant had been unfairly and wrongfully dismissed. It made no Polkey or contributory-fault reduction and adjourned remedy.