When taking into account whether compensation should be reduced for a successful claim of unfair dismissal, the Employment Appeal Tribunal (EAT) held in Daly v BMI Healthcare Ltd that the question for the tribunal was not whether the hearing would have been fair if the employer had conducted it on different grounds, but rather whether the dismissal would have been fair if there had been a fair disciplinary hearing.
After being dismissed, Mr Daly lodged a tribunal claim for unfair dismissal, disability discrimination and protected disclosure detriment (whistleblowing).
The employer argued that the reason for the dismissal was Mr Daly’s conduct which had led to a breach of trust and confidence and a breakdown of the working relationship. This included repeated failures to comply with reasonable management requests not to contact the executive team and a failure to comply with a reasonable request to attend a meeting on 26 April 2017.
The tribunal, however, found that while there had been a breakdown in the working relationship between the parties, it was not because of Mr Daly’s conduct but because he had become impossible to manage due to “the manner of his communications and his behaviour generally”.
However, the tribunal found that these concerns had not been put to Mr Daly during the disciplinary process. Indeed, instead of making clear to Mr Daly that the working relationship had completely broken down because of a lack of trust and confidence and that he would be dismissed if his behaviour did not improve, the employer had just looked for a way to get rid of him. The reason given by the employer was therefore a sham, rendering the dismissal unfair.
However, because Mr Daly had contributed so much to the dismissal, the tribunal concluded that it would be just and equitable under section 123 of the Employment Rights Act 1996 (ERA) to reduce both the basic award and the compensatory award by 75 per cent. This states that if a tribunal decides that a dismissal “was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable”.
In addition, given his behaviour, the tribunal held that it was only a matter of time before the employer started disciplinary proceedings and therefore it was likely that he would have been dismissed within six months of the date of the actual termination of his employment.
Mr Daly appealed on the grounds that it was perverse for the tribunal to decide that he would have been dismissed in any event within six months, as it was based on an unwarranted assumption that he would not have heeded warnings to change his behaviour. In addition, the tribunal had failed to give adequate reasons for its conclusions.
Dismissing the appeal, the EAT held that the tribunal’s conclusion (that Mr Daly would not have heeded warnings to change his behaviour and would have been dismissed fairly as a result) was legitimately drawn from the facts and from the tribunal’s assessment of Mr Daly when he gave his evidence. The tribunal had also given logical and comprehensible reasons for its conclusions.
The EAT also noted that the tribunal had recognised that the question when applying section 123 ERA was not whether the hearing would have been fair if the employer had conducted further proceedings on different grounds, but rather whether the dismissal would have been fair if there had been a fair disciplinary hearing.