Unfair dismissal: Contributory Conduct

Authors: Stephen Miller, Heidi Watson, Corinna Harris, Sophie Jackson and Charlotte Stern

The Employment Appeal Tribunal has provided useful guidance for employers on contributory conduct and reinstatement in unfair dismissal cases.

The employee, a warehouse worker with DHL, raised a grievance after being unsuccessful in his application for an administrative role. During the grievance process, he posted details of the grievance on Facebook and posted additional comments criticising DHL and referring to colleagues and managers. Following an investigation, he was dismissed for gross misconduct.

The Tribunal found the dismissal unfair, noting he had not received, or been trained on, the social media policy and there was little evidence that the posts had caused reputational damage to DHL. It ordered that he should be reinstated in his role and reduced his compensation by 10% for contributory conduct.

On appeal, the EAT found that the Tribunal had applied the wrong approach to reinstatement. It had failed to consider whether the employee’s conduct during the litigation had led DHL to genuinely and rationally conclude that it had lost trust and confidence in him. The EAT therefore remitted this issue to the Tribunal for reconsideration.

The EAT also clarified when compensation may be reduced for contributory conduct:

• A Tribunal may reduce the basic award where the employee engaged in culpable or blameworthy conduct before dismissal and it is just and equitable to make a reduction. It is not necessary for the conduct to cause or contribute to the dismissal, or for the employer to have known about it at the time of dismissal.
• A Tribunal must reduce the compensatory award where the employee’s conduct caused or contributed to the dismissal. The conduct must therefore have been known to the employer and taken into account when deciding to dismiss and can include conduct occurring between dismissal and the conclusion of an internal appeal.

Key Action Points for Human Resources and In-house Counsel

The correct test, when determining whether reinstatement is practicable where the employee has contributed to their dismissal, is whether, having regard to that contributory conduct, the tribunal considers it would be just to order their reinstatement.

This case also highlights the importance for employers of demonstrating they genuinely and rationally believe there has been a breakdown in trust and confidence to avoid an employee being reinstated.

DHL Services Limited v Ignatowicz