Does an employee have to commit gross misconduct for a reduction for contributory fault?
An employee who has contributed to their own dismissal can have their compensation reduced by anything up to 100%. This is called contributory fault.
A tribunal will exercise its discretion to decide what deduction would be fair in each case.
In the case of Jagex v McCambridge, the Employment Appeal Tribunal (EAT) looked at whether the employee’s conduct must amount to gross misconduct in order to justify a reduction.
The employee found some paperwork detailing the pay of a senior employee on a communal printer. He then referred to the document when speaking to colleagues. One of the colleagues began a guessing game about the senior employee’s salary. The employee was dismissed for gross misconduct for disclosing confidential information. The employee won his claim for unfair dismissal.
The tribunal held that under his employment contract it did not specify that pay information was confidential, therefore disclosing this information was not an act of gross misconduct and his dismissal was unfair. No reduction was made for contributory fault because revealing the employee’s pay was not gross misconduct. The employer appealed.
The EAT agreed that the employee’s actions did not amount to gross misconduct but disagreed with the conclusion that a reduction for contributory fault could only be made in cases of gross misconduct. The case was sent back to the employment tribunal to look at whether it was fair for a reduction to be made.
This case illustrates that any misconduct can be taken into account by an employment tribunal when awarding compensation. For more information or further advice, contact Kimberley Clayton at 01473 298168 or email [email protected].
