Last reviewed 26 May 2021

The Employment Appeal Tribunal (EAT) has held that a tribunal’s decision to reduce compensation awarded in an unfair dismissal claim was not perverse as the claimant’s argument, that he would have avoided dismissal if provided opportunity to change his behaviour, was not substantiated.

The law

Unfair dismissal claims can arise when the procedure which led to a decision to dismiss an employee is flawed. For example, the employee’s reason for dismissal may be specified as one thing, but the conduct they were previously accused of was something else.

In these situations, a finding of unfair dismissal by tribunals can still be seen on the basis of the procedure, even if the tribunal agrees that it is likely the employee would have been dismissed anyway due to their conduct. However, the tribunal may reduce the compensation awarded to the claimant depending on how likely this would have been.

Judgements need to be Meek compliant, which means that they must clearly outline why they have considered the evidence of one party over another. If relevant, they must also demonstrate why the evidence of a witness, whose credibility has not been called into question, has been rejected.

The facts

The relationship between an employee and an organisation began to break down, leading to him making a number of complaints to management and, eventually, raising grievances. Although the HR department had become involved in his concerns, he had mostly refused to engage with them, instead wanting his concerns to be directly heard, and responded to, by the organisation’s directors.

In response, the organisation’s general council sent him an email, instructing him not to write directly to its CEO and instead submit to them a document, no more than four pages long, summarising his grievances. She concluded by seeking his assurance that, if they could resolve these issues together, he would use his “best endeavours” to re-establish a normal working relationship.

The claimant was unsatisfied with this communication, sending several replies in which he claimed his right to fair speech, and a fair hearing, were being breached. He also used a number of phrases such as “corporate bullying” and “corporate assault”.

The claimant was later dismissed from his role following a disciplinary procedure. The organisation later argued that his repeated failure to comply with the request not to contact management, and his refusal to attend a meeting when asked to, something they stated was a reasonable request, made him “unmanageable”.

The claimant countered by stating that he had never gotten the impression that his behaviour made him “unmanageable” by the organisation and questioned the real reasons for his dismissal. He therefore brought a claim for unfair dismissal.

Decision: employment tribunal

The employment tribunal (ET) upheld his claim, finding that he had been unfairly dismissed.

They held that whilst there had been a clear breakdown in the working relationship, this had not arisen from the conduct relied upon by the organisation. When assessing the evidence in front of them, it was concluded that the claimant had been dismissed due to ‘the manner of his communications and his behaviour generally’, and not for the reasons argued by the organisation.

Crucially, this specific conduct had not been put to the claimant during his disciplinary procedure, therefore, the dismissal was a sham and unfair.

That said, it was also clear to the tribunal that the claimant’s conduct had contributed significantly to his dismissal and, on the balance of the evidence, it was likely he would have been dismissed within six months anyway. Therefore, they deemed it was just and equitable to reduce his compensation.

The claimant appealed against this reduction, stating the tribunal’s conclusion was perverse. He argued that the tribunal had erred as there was no evidential basis for concluding he would not have changed his behaviour if warned about it, especially as he had heeded a previous warning. He also stated that the tribunal had failed to give clear reasons as to why the dismissal would have occurred within six months.

Decision: employment appeal tribunal

The EAT dismissed his appeal.

They explained that the test for perversity in a tribunal’s decision is a high one and will be based upon whether the conclusion reached by them was irrational, offends reason, is clearly wrong, makes no sense or was not a permissible option on the facts.

When applied to this situation, the EAT found that neither of the claimant’s points were well founded. The tribunal had correctly and fully assessed the evidence before it, noting that the claimant had repeatedly complained about the involvement of HR and fixated on minor issues, something that obstructed the ability of the organisation to respond to his grievances.

The tribunal had therefore correctly concluded, on the balance of the evidence available to it, that the claimant didn’t believe he had done anything wrong and didn’t want to change his behaviour despite being provided a number of opportunities to do so. This ruling was Meek compliant and could stand.

Takeaway

This case reminds organisations that they need to maintain clear procedures when making a decision to dismiss an employee, stating exactly what the conduct issue is throughout the process. Failure, as seen here, can lead to successful unfair dismissal claims.

Nevertheless, this case also shows that the conduct of a claimant can help to reduce the compensation awarded to them, provided the organisation can clearly demonstrate the circumstances which contributed to the dismissal. To this end, it is vital that organisations respond with care to problem employees, listen to their concerns and are prepared to take further steps if necessary.