MISS S LEWIS v THE GOVERNING BODY OF TAI'RGWAITH PRIMARY SCHOOL

For contributory-fault deductions, an Employment Tribunal must assess the employee’s actual conduct for itself. It must identify the conduct, decide whether it was blameworthy and, for a compensatory award, decide whether it caused or contributed to dismissal. It must then make the reductions that are just and equitable.

A procedural unfairness does not require an award of compensation. A 100% reduction in both the basic and compensatory awards is lawful where the employee’s seriously blameworthy conduct was the sole cause of dismissal and the procedural defect had no causal link to that dismissal. Reasons must be read as a whole; a concise concluding paragraph may adequately address the distinct statutory tests for each award.

The claimant, a foundation-years teacher, was dismissed after an incident in which she pulled a child to the ground. The Employment Tribunal found the dismissal procedurally unfair because the school had not made reasonable efforts to secure the attendance of the teaching assistants whose evidence was central to the disciplinary and appeal hearings.

The Tribunal nevertheless found, on the evidence before it, that the claimant had used unnecessary force. It reduced both her basic and compensatory awards by 100% for contributory conduct. The claimant appealed the deductions, the adequacy of the Tribunal’s reasons and the asserted perversity of its factual finding.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the claimant’s conduct was seriously blameworthy and to reduce both awards by 100%.

2. Under Employment Rights Act 1996, section 122(2) concerns whether it is just and equitable to reduce the basic award. Section 123(6) additionally requires a finding that the employee’s conduct caused or contributed to dismissal. Applying Steen v ASP Packaging Ltd, the Tribunal had to make its own findings about what the claimant actually did. The employer’s assessment of that conduct was irrelevant to the contributory-fault exercise.

3. The Tribunal identified the relevant conduct as the claimant’s use of unnecessary force against the child. It found that conduct seriously blameworthy and found that it led to her dismissal. Those findings were supported by the evidence which the Tribunal accepted. Its finding that the claimant lost her temper added little to blameworthiness, but was open to it as an explanation of her conduct. The perversity ground therefore failed.

4. The procedural defect made the dismissal unfair, but it had no causal link to the dismissal itself. The claimant’s conduct was the sole cause. Following Ingram v Bristol Street Parts, there is no rule that an employee must receive some compensation merely because the employer’s procedure was unfair. A 100% contributory reduction may therefore be just and equitable.

5. Although the Tribunal’s final paragraph was concise, its reasons as a whole addressed the required questions and separately considered the basic and compensatory awards. Similar reductions to both awards are permissible. No error of law was shown.

• Employment Appeal Tribunal — dismissed the claimant’s appeal: [2022] EAT 16.
• Employment Tribunal, Swansea — found the dismissal unfair for procedural reasons, but reduced the basic and compensatory awards by 100% for contributory conduct. Written reasons were sent on 4 February 2020.