Topps Tiles PLC v G Hardy

For compensation following unfair dismissal, a tribunal must assess contributory conduct by reference to the employee’s actual conduct. Under section 123(6) of the Employment Rights Act 1996, it must determine whether the conduct was culpable or blameworthy, whether it caused or contributed to dismissal, and then whether and by what just and equitable proportion the compensatory award should be reduced.

The employer’s fault is relevant only at the final discretionary stage. Under section 122(2), the basic award is subject to its separate just and equitable test.

For discrimination arising from disability, the disability-related consequence need only be a significant, rather than trivial, effective cause of the unfavourable treatment. Proportionality permits consideration of realistic alternatives to dismissal and its individual impact.

The claimant, a long-serving store manager with depression, was dismissed after an altercation with an abusive customer. The Employment Tribunal held that he had been unfairly dismissed and subjected to discrimination arising from disability contrary to section 15 of the Equality Act 2010. It also determined, before the remedy hearing, that he had not contributed to his dismissal.

The employer appealed. It challenged the Tribunal’s findings on causation and proportionality under section 15, its consideration of the potential career effect of dismissal, and its conclusion on contribution to compensation for unfair dismissal. The central issue was whether the Tribunal had applied the statutory tests for causation, proportionality and contributory conduct.

1. Appeal allowed in part. The appeal succeeded only on contributory conduct. The issue of reduction of unfair-dismissal compensation was remitted to the Employment Tribunal. The remaining grounds were refused.

2. Under section 15(1)(a) of the Equality Act 2010, the relevant cause need not be the disability itself. It may be a consequence of disability and need only have a significant, meaning more than trivial, influence on the unfavourable treatment. The Tribunal permissibly found that the claimant’s difficulty managing anger when provoked by a customer was such a consequence and an effective cause of dismissal. The fact that the employer had exaggerated aspects of the incident did not mean that the claimant’s actual conduct was insignificant.

3. The Tribunal correctly found that dismissal was not a proportionate means of achieving the accepted legitimate aim. A formal occupational-health referral was qualitatively different from informal support or counselling previously offered. It was a permissible alternative for the Tribunal to consider, even though its outcome was uncertain. The Tribunal could also weigh the claimant’s age, depression, long service and dismissal for gross misconduct when assessing the individual impact of dismissal. The reference to a career-ending effect was properly understood as a potential effect and made no remedy finding.

4. For a compensatory award under section 123(6) of the Employment Rights Act 1996, the Tribunal must identify culpable or blameworthy conduct, decide whether it caused or contributed to dismissal, and then determine the just and equitable percentage reduction. The Tribunal wrongly asked whether a reasonable employer could have treated the claimant’s faulty conduct as gross misconduct. That conflated contribution with the fairness of dismissal. Employer fault could be considered only at the final just and equitable stage.

5. Section 122(2) imposes a distinct just and equitable inquiry for the basic award; it does not ask whether conduct contributed to dismissal. The Tribunal had not applied that test either. The same Tribunal was best placed to determine the remitted issues at the forthcoming remedy hearing.

• Employment Appeal Tribunal: appeal allowed only in respect of contributory reductions under sections 122(2) and 123(6) of the Employment Rights Act 1996; those issues remitted to the Employment Tribunal.
• Employment Tribunal, Newcastle upon Tyne: found unfair dismissal and discrimination arising from disability under section 15 of the Equality Act 2010, and determined that the claimant had not contributed to dismissal. No lower-court citation was stated.