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Case law: Employer arguing for reduction in unfair dismissal award on grounds of employee’s contributory fault need not prove gross misconduct by employee

Employers faced with an unfair dismissal claim may be able to argue any award made should be reduced on grounds the employee’s conduct leading to the dismissal was blameworthy or culpable – it need not satisfy the more stringent test that it was gross misconduct.

January 2020

This update was published in Legal Alert - January 2020

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

An employee found a document containing details of a senior staff member’s pay left on an office photocopier, and pointed it out to co-workers. Although he was not involved, this led to a guessing game in the staff canteen where staff guessed how much the senior manager earned. The employee was dismissed for gross misconduct.

In the employee’s claim for unfair dismissal, the Employment Tribunal (ET) found there was no gross misconduct by the employee, therefore it would not reduce the award made against the employer on grounds of the employee’s contributory conduct. The employer appealed, arguing that it was open to the ET to reduce an award on grounds of contributory conduct - even when the employee’s conduct had fallen short of being gross misconduct and was merely blameworthy or culpable.

The Employment Appeal Tribunal agreed, and referred the issue back to the ET for reconsideration.

Operative date

  • Now

Recommendation

  • Employers faced with a claim for unfair dismissal may be able to have any award made against them reduced on grounds the employee’s conduct had been blameworthy or culpable – it does not have to satisfy the more stringent test that there was gross misconduct.

Case ref: Jagex Ltd v McCambridge UKEAT/0041/19/LA

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