Colette Hunt’s article When might an employee be found to have contributed to their own dismissal? (September 2012) considers decisions of the Jersey Employment Tribunal.

But what about the position in Guernsey - can employees here contribute to their own dismissal?

The short answer is “yes”…

In Colette’s article it is clear that the Tribunal’s in Jersey will reduce compensatory awards in successful unfair dismissal cases, if it believes that it is “just and equitable to do so”; the case in point illustrated that an employee’s swearing whilst at work had effectively resulted in his own downfall.

The sentiment felt in Jersey is similar to that felt within Guernsey, but again, there has been very little reported activity that has seen the Tribunal compelled to use this power. The position is the same in both Islands - in serious, and often very rare, circumstances the level of award can be reduced if it is considered “just and equitable” to do so.

The Guernsey Tribunal also recently exercised its power to make a percentage reduction in a compensatory award for unfair dismissal - this time based on an employee’s allegedly fraudulent conduct outside the working environment. Here, it heard a claim for unfair dismissal brought by a former employee who was dismissed whilst on remand for allegedly committing serious fraud offences involving possessing and using counterfeit money.

The former employee had only been on remand for two weeks before her employer, the States of Guernsey, made the decision to terminate her employment on the grounds of ‘frustration’, i.e. the contract was impossible to perform. It was the States’ position that the nature of the allegations were so serious that it was unlikely the former employee would be released from custody in the foreseeable future and, as such, the contract of employment did become impossible to perform. It further argued that in light of the ‘frustration’ there was no need to proceed with any disciplinary or appeals process; the employment had effectively come to an end by virtue of the former employee’s own conduct.

Not so, held the Tribunal - the contract was not frustrated, instead this was an issue of gross misconduct which fell within the States’ own disciplinary policies and procedures and should have been treated as such. Throughout the period on remand it was not clear whether the former employee would in fact have been found guilty of the alleged offences (the fact that she ultimately pleaded guilty was irrelevant).

Indeed, at only two weeks on remand the parties had “no idea if new facts might emerge, bail be requested, charges dropped or indeed any other possible outcome might occur”. Consequently, the Tribunal took the view that the facts were not so clear cut that a reasonable employer could take the reasonable decision that the contract had effectively come to an end; a dismissal occurred. As no disciplinary procedure had been followed despite issues of ‘fraud involving the public’ being listed as an example of gross misconduct that would invoke the disciplinary policy, the dismissal was undoubtedly unfair. The Tribunal ignored the cries of the States when it questioned how such a procedure may realistically be conducted when the individual concerned is in prison; this remains an unanswered question!

Although the Tribunal did not conclude exactly what the correct course of action should have been for the States in these circumstances, it did infer that a possible suspension without pay, pending a subsequent conviction or finding of innocence, may have been more appropriate on the facts. Nevertheless, the former employee was dismissed unfairly, entitling her to receive the automatic maximum compensatory award of six months’ gross salary (pursuant to Guernsey law).

Outraged by the Tribunal’s decision, the States immediately sought a reduction on the level of award payable asserting that her conduct had been so serious that it should not be penalised for her mistakes; her conduct was blameworthy and she had brought the termination of employment upon herself. The Tribunal listened and ruled accordingly.

Taking into account the circumstances as a whole the Tribunal acknowledged that this was a difficult situation for any employer to face and that the former employee had in fact made many poor judgments in her personal life, which led to a rather complex predicament for all concerned. Accordingly, the level of award was reduced by 25%.

As can be seen from the legal positions in both Islands, there is no hard and fast rule as to what, if any, reduction should be made from a compensatory award based on an employee’s own conduct (whether inside or outside of the working arena). Essentially, the Tribunal may reduce an award to whatever extent it sees fit - it is like plucking a figure from mid-air. This Guernsey case certainly demonstrated a higher reduction than seen in many years previously but it would appear that each case is measured on its own facts, and the severity of the employee’s own conduct is a significant contributing factor.