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City Plumbing Supplies Limited dismissed a driver who was imprisoned for 18 weeks because he breached a court order issued in respect of an allegation of homophobic remarks made to a neighbour.   The employee had a chequered disciplinary history but at the Tribunal claimed the reason for dismissal was because the employee was unable to fulfil their contractual obligations and so the employment contract was frustrated. 
 
Interestingly, the tribunal found that Mr Prior had been unfairly dismissed because the length of the prison sentence was not sufficiently long to justify creating a frustration (viz. no reason for dismissal falling within section 98(1) of the Employment Relations Act 1996).  

It should be noted that the Tribunal had adduced from all the facts found that “….. the [employer] had had difficulties with the Claimant and saw the prison sentence as an opportunity to terminate his employment, but unfortunately for them erroneously using, as a reason, frustration of contract.”

This case is interesting because the employers argued (and won on appeal) to reduce their exposure to costs by suggesting that the employee was contributory to his dismissal.  

Contributory conduct is long established in two judgements.  “The first of Brandon LJ in Nelson v British Broadcasting Corporation (No 2) [1980] ICR 110, namely:

(1)   Was there conduct in connection with the unfair dismissal which was culpable or blameworthy?

(2)   Was the unfair dismissal to some extent caused or contributed to by that conduct?

(3)   Was it just and equitable to reduce the assessment of compensation by the amount proposed?”

The second judgement  by Browne‑Wilkinson J in Hutchinson v Enfield Rolling Mills Ltd [1981] IRLR 318, clarified:

“……. the Tribunal must find that the action of the employee caused or contributed to the dismissal and the amount of the reduction is the amount which is just and equitable having regard to that finding.  In our view, there has to be a causal link between the actions of the employee and the dismissal.  You cannot simply point to some bad behaviour of the employee and say, ‘By reason of that matter, we are going to reduce the amount of the compensation’.” 

Hutchinson helps us in that it further clarifies that the fairness of the dismissal is not relevant to the question of a causative link between the dismissal and the conduct which is said to be blameworthy.  In this respect the EAT agreed, the employee was part contributory and the EAT upheld the contributory reduction. 

However, the EAT also stated that reinstatement/re-engagement was to be considered.  The latter decision was made because the original tribunal had not properly stated their reasons.  Another hearing, more costs.

Link and citation: UKEAT/0535/11/CEA

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