Unfair dismissal- when can compensation be reduced for contributory fault?

07 January 2020

If an employee has contributed to their dismissal, their compensation can be reduced by anything up to 100%. This is called 'contributory fault'.

A tribunal will use its discretion to decide what deduction would be fair in any given case. In Jagex v McCambridge, the Employment Appeal Tribunal looked at whether the conduct in question must be gross misconduct in order to justify a reduction for contributory fault.

The employee found some paperwork on a communal printer which revealed the pay of a senior employee. He mentioned the document to colleagues. One of the colleagues started a guessing game over lunch about how much the senior employee earned (the employee wasn’t there). This got back to management who dismissed the employee for gross misconduct for disclosing details of a confidential document. The employee brought an unfair dismissal claim and won. The tribunal said his employment contract did not state that pay information was confidential. Disclosing this information was not an act of gross misconduct and his dismissal was unfair. They also said there could be no reduction for contributory fault because revealing the senior employee's pay was not gross misconduct. The employer appealed.

The EAT agreed that this was not gross misconduct. However, they disagreed with the tribunal's conclusion that a reduction for contributory fault could only be made in gross misconduct cases. The tribunal should have looked at whether it was fair in this case for a reduction to be made. The case was sent back to the employment tribunal to look at the issue afresh.

This case shows that simple misconduct, not just gross misconduct, can be taken into account by an employment tribunal when considering an employee's compensation.


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