DHL Services Limited v Pawel Ignatowicz

When assessing contributory conduct, an Employment Tribunal must distinguish the basic award from the compensatory award. Conduct before dismissal may be relevant to the basic award whether or not the employer knew of it or relied on it. Conduct relevant to the compensatory award must have been known to the employer and must have caused or contributed to the dismissal, including through the appeal process.

In deciding whether to order reinstatement, the Tribunal must address the complainant’s wishes, practicability, and, only if established, whether contribution makes reinstatement unjust. Practicability requires an objective, real-world assessment from the employer’s perspective, including any genuine and rational loss of confidence. The Tribunal must also consider relevant conduct occurring during the litigation and the qualified right to freedom of expression.

The claimant was dismissed after publishing on Facebook his workplace grievance and further posts referring to colleagues, managers and alleged enemies. The Employment Tribunal found the dismissal unfair, reduced compensation by 10% for contributory conduct, and ordered reinstatement.

The employer appealed on remedy grounds. It argued that the Tribunal had failed properly to assess the claimant’s conduct in relation to contribution and had applied the wrong approach to practicability and trust and confidence when ordering reinstatement. The appeal also raised the relevance of later posts and conduct during litigation.

The central issues were how sections 122(2) and 123(6) of the Employment Rights Act 1996 apply to post-dismissal conduct, and how section 116 governs reinstatement.

1. Contribution. Section 122(2) of the Employment Rights Act 1996 requires consideration of culpable or blameworthy conduct occurring before dismissal, or before notice where dismissal is on notice. The conduct need not have caused the dismissal or been known to the employer. The Tribunal therefore had to assess the 6 June, 9 June and 15 July posts when considering the basic award.
2. Section 123(6) requires a causal connection. The conduct must have been known to the employer and must have caused or contributed to the dismissal. Conduct considered during an appeal may qualify where it contributed to the decision to reject the appeal and uphold dismissal, because the original and appellate decisions form part of the overall termination process. The Tribunal had to consider the relevant posts, including the August posts, on that basis.
3. Reinstatement. Section 116 requires the Tribunal to consider, in sequence, the complainant’s wishes, whether reinstatement is practicable, and, where the complainant caused or contributed to dismissal, whether it would be just to order reinstatement. The Tribunal incorrectly treated contribution as a question of whether it prevented reinstatement from being practicable. British Council v Sellers makes clear that a finding of contribution is not required by section 116(1)(c); the provision applies only if contribution has been established.
4. Practicability is a prospective, real-world assessment at the date of the remedy hearing. It concerns whether reinstatement can be carried into effect with success, viewed from the perspective of the employer. A genuine and rational loss of confidence may make reinstatement impracticable, but a bare assertion, emotion or speculation is insufficient. The Tribunal must assess the effect of the claimant’s conduct on relevant staff and the employer’s confidence, rather than substitute its own view of whether confidence ought to have broken down.
5. The Tribunal erred by failing to assess whether the claimant’s conduct during the litigation, including highly offensive comparisons and allegations, caused the respondent genuinely and rationally to lose confidence in him. The remitted Tribunal must consider that conduct, later comments, and any other relevant matters relied upon by the respondent.
6. The qualified Convention right to freedom of expression had not been considered. It might affect the interpretation and application of the provisions governing contribution and reinstatement. The issue was remitted for determination with the relevant provisions and authorities before the Tribunal.
7. Grounds 4 and 5 were upheld. The assessments of contribution and reinstatement were remitted to the same Employment Tribunal, which must assess practicability as at the date of the remitted hearing.

• Employment Appeal Tribunal: Grounds 4 and 5 upheld. The assessments of contribution and reinstatement were remitted to the same Employment Tribunal.
• Employment Tribunal: The claimant’s unfair-dismissal complaint was upheld. Compensation was reduced by 10% for contributory conduct and reinstatement was ordered.