Sanha v Facilicom Cleaning Services Ltd

A reduction for contributory conduct under sections 122(2) or 123(6) of the Employment Rights Act 1996 requires conduct which the tribunal finds culpable or blameworthy. For a compensatory-award reduction, the tribunal must also make a positive finding that the conduct caused or contributed to the dismissal.

Blameworthy conduct is not confined to deliberate conduct. Its nature and degree bear on what reduction is just and equitable.

On mitigation, the employer bears the burden of showing that the employee acted unreasonably. It is insufficient to show merely that a proposed step would have been reasonable. The issue must be fairly raised and supported by evidence, with a proper opportunity to answer it.

The claimant, a cleaner, was dismissed after his residence permit expired and the respondent obtained inconclusive Employer Checking Service responses. The Employment Tribunal held that the dismissal was unfair and made basic and compensatory awards. It reduced the compensatory award by 25% for the claimant having been less than forthcoming about his immigration application. It also limited loss of earnings because he had not applied for the respondent’s night-work vacancies.

The claimant appealed those remedy reductions. The respondent cross-appealed, contending that the tribunal should have distinguished deliberate from inadvertent conduct when considering contributory fault. The central issues were whether the statutory requirements for contributory conduct and mitigation had been correctly applied, and whether either issue required remission.

1. Appeal allowed in substance; cross-appeal dismissed. The Tribunal erred in treating blameworthiness as necessary for a reduction of the basic award but not the compensatory award. A finding of culpable or blameworthy conduct is a minimum requirement under both sections 122(2) and 123(6) of the Employment Rights Act 1996. Under section 123(6), there must additionally be a positive finding that the conduct caused or contributed to the dismissal.

2. The Tribunal’s implicit conclusion that the claimant’s conduct was not blameworthy was unsafe. It gave no legal or factual reasoning for it and reached it within an erroneous legal framework. A tribunal need not draw a distinct line between deliberate and inadvertent conduct. Conduct may be blameworthy in a variety of ways, including potentially negligent, foolish or sufficiently unreasonable conduct. Its nature and degree are relevant to the just and equitable percentage reduction.

3. Nevertheless, no remission was appropriate on contributory conduct. Although it could have been open to the Tribunal to regard the claimant’s failure to provide fuller information as blameworthy, there was no evidential basis for a positive finding that it caused or contributed to his dismissal. The Tribunal had heard no evidence from the decision-maker and could make no finding about that person’s thought process. The only legally correct outcome was therefore no reduction under section 123(6).

4. The Tribunal also erred in limiting compensation for failure to mitigate. The respondent had to prove that it was unreasonable, in all the circumstances, for the claimant not to apply for night work; proof that applying might have been reasonable did not suffice. Its evidence about the vacancies, pay, hours, recruitment process and likelihood of re-employment was inadequate. The point was not fairly put to the claimant in cross-examination or raised in submissions. No reduction for failure to mitigate could therefore stand.

5. The case was remitted to the same Tribunal to calculate the compensatory award without either reduction and to determine the remaining loss-of-earnings issue.

• Employment Appeal Tribunal: Allowed the claimant’s appeal against the remedy reductions, dismissed the respondent’s cross-appeal, substituted no reduction under section 123(6) of the Employment Rights Act 1996, and remitted the remaining compensatory-award calculation to the same Tribunal.
• Employment Tribunal: In a reserved decision promulgated in July 2018, upheld claims including unfair dismissal, made basic and compensatory awards, and reduced or limited compensation for contributory conduct and alleged failure to mitigate.