If a worker is found to have contributed to their dismissal in some way, tribunals can reduce their compensation accordingly. In Jagex Ltd v McCambridge, the Employment Appeal Tribunal (EAT) held that tribunals were not restricted to making a reduction only where the claimant had committed an act of gross misconduct.
Mr McCambridge found a document very early one morning on the communal printer, which contained (the very generous) pay details of a senior executive. It was also seen by a number of other employees, two of whom raised the issue of the high levels of executive pay with their managers the same day.
Although Mr McCambridge only mentioned the fact that he had found the document to one other person that day, word quickly got round and by lunchtime a group of employees, which did not include Mr McCambridge, engaged in a guessing game about executive pay. Indeed, he was unaware that the game had ever taken place. The document remained on the printer until Mr McCambridge put it in a confidential waste bin the following day.
He was subsequently summarily dismissed for gross misconduct as a result of a “significant breach of trust and confidence” which involved “purposely” sharing the information contained in the document without the consent of the person concerned, in contravention of the confidentiality clause in his contract.
Mr McCambridge lodged claims of unfair and wrongful dismissal.
The tribunal was very critical of the company saying that it had reacted in an “extraordinarily heavy-handed manner” in order to make an example of Mr McCambridge. Although he should not have shared the information, no reasonable employer would say that his behaviour amounted to gross misconduct. Not only was the dismissal substantively unfair, it was also procedurally unfair as the company had failed to follow its own policies and procedures as well as the ACAS code of practice.
With regard to the wrongful dismissal claim, the tribunal held that Mr McCambridge had not breached any of the express contractual terms in his contract. As such, it declined to reduce his compensation on the basis of contributory fault or make a “Polkey” reduction (a reference to a situation where, even if the employer had followed a fair procedure, the employee would have been dismissed in any event).
The company appealed against the wrongful dismissal finding and the tribunal’s refusal to make a reduction in respect of both contributory fault and Polkey.
The EAT held firstly that the tribunal had taken the correct approach with regard to both the construction of the contract and the finding that Mr McCambridge’s behaviour did not constitute gross misconduct. There was no express or implied term of the contract that salary information was confidential. Even if there had been, the tribunal was entitled to find that he had not breached the clause in his contract concerning confidential information.
Secondly, the tribunal had adopted the correct approach with regard to Polkey, having found the decision to dismiss Mr McCambridge to be substantively, as well as procedurally, unfair. The company had wrongly sought to make an example of Mr McCambridge. As such, even if it had followed a fair procedure, that would not have made the dismissal fair.
However, the tribunal was wrong to decide that it could only make a contributory fault reduction if he had committed an act of gross misconduct. Instead the correct test involved considering whether the conduct was culpable or blameworthy, while falling short of gross misconduct or a breach of contract. The EAT therefore remitted the issue of contributory fault back to the same tribunal so that it could be decided at the forthcoming remedy hearing.