When an employee might be found to have contributed to their own dismissal is something many employers could find useful, to determine whether it is economical to hold out for such a reduction at a contested hearing.
Of course, each case will turn on its own particular facts. Nonetheless, previous decisions of the Jersey Employment Tribunal can provide some guidance.
Since it came into effect, Article 77F of the Employment (Jersey) Law 2003, as amended, has been used and relied on by employers to reduce compensation awards made against them, with varying degrees of success. Fewer than ten reported decisions have considered this point to date and these have shown that the Tribunal is prepared to make the full range of decisions, from no deduction being made to the maximum of 100%.
This is always going to be an issue that is difficult for the parties to agree on and so, undoubtedly, the Tribunal will have to consider reducing awards in this way time and time again.
An employee representing themselves may feel they have nothing to lose by going all the way to a contested hearing. However, where the employee is legally represented, there is perhaps more of a chance that some agreement may be able to be reached on this point. The employee may take the view that it is preferable to agree a deduction rather than risk a larger percentage deduction being made by the Tribunal, as well as possibly having to pay for the fees of being legally represented (where they do not have the benefit of a legal expense insurance policy or the support of a trade union).
It must be remembered that before any of the provisions of Article 77F come into play, there needs to have been a decision (or an acceptance by the employer) that the dismissal was unfair and that the employee is entitled to the compensation award, calculated in accordance with the Employment (Awards) (Jersey) Order 2009.
The most recent occasion in which the Tribunal considered making a deduction under Article 77F involved three different complaints made by the employer against the employee – (i) a failure to comply with management requests, (ii) telling a lie and (iii) swearing, abuse and confrontational attitude, which were all alleged to have contributed or led to their dismissal.
The Tribunal accepted that the employee’s conduct needed to be culpable or blameworthy in some way even though this is not specifically expressed in the Law. This is because this point has been well established in previous case law in the UK.
As far as the first allegation was concerned, the employee had been asked by management not to discuss an issue with anybody who did not already know about it. Although the Tribunal found that there had not been compliance with this, it found that the conduct was at the lower end of the scale and that it was not culpable and blameworthy. It found that even though this had contributed to the dismissal, the employer should not have taken it into account and to reduce the compensation award because of this would be unjust.
Once might think that the Tribunal would definitely have made some reduction where it found that an employee had lied. At the previous hearing where the Tribunal had determined that the dismissal was unfair, it had found that a lie had been told during a meeting, but it subsequently considered that because the lie was so quickly corrected (within 15 minutes), it was not significant and, thus, this conduct was not materially culpable or blameworthy.
At the previous hearing, the Tribunal had also found that the employee had sworn during the meeting, had been argumentative and rude and that the swearing and general behaviour was unattractive. The meeting had been difficult and unpleasant and this was partly due to the employee. This conduct was considered to be blameworthy and he had, to some extent, brought the dismissal upon himself. The Tribunal found that it was just and equitable to reduce his compensation award on account of this.
So, of the three allegations made, only the latter resulted in a deduction of the compensation award.
When determining the percentage reduction, the Tribunal looked at the circumstances as a whole and held that the employee’s conduct played a material but minor part in the dismissal. It reduced his award by 20%.
So, while it is always worth an employer considering ways in which the employee’s conduct may be criticised subsequently, it is very difficult, if not impossible, to accurately predict the extent to which an employee may be found to have caused or contributed to their dismissal. The litigation risk in such cases varies from case to case depending very much on how the witnesses present their evidence before the Tribunal and the general impression it gains of the employee, whether he or she comes across as being forthright or timid when put under pressure by the former employer.
This is yet another reason why employers should make and keep notes of all discussions and meetings with the employee, as this evidence may prove very useful when the Tribunal is considering how much to reduce an award on account of the conduct of the employee.