United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR R CASSELL (of Counsel) Messrs Hatch Brenner Solicitors 4 Threatre Street Norwich NR2 1QY


 


JUDGE PETER CLARK: The point in this employer's appeal may be shortly stated. The Applicant, an experienced secretary working for the Group Personnel Manager, Mr Saunders, sent a confidential fax to the wrong internal department of the company in error. Mr Saunders regarded that error as constituting gross misconduct and summarily dismissed her following a disciplinary hearing. Her internal appeal was dismissed.

In their liability decision dated 5 June 1998 the Norwich Employment Tribunal found that the reason for dismissal was misconduct. She made the mistaken transmission and was therefore primarily liable. It was a serious mistake meriting a warning. However, the Tribunal concluded that dismissal fell outside the range of reasonable responses. It was unfair.

At a subsequent remedies hearing held on 9 June 1998, the Tribunal was invited to reduce both the basic and compensatory awards on the grounds that the Applicant had contributed to her own dismissal.

In their remedies decision dated 21 July 1998, at paragraph 6 of the reasons, the Tribunal say this:

"5. We have been addressed on the question of contributory conduct and the Respondent seeks reductions in both the basic and the compensatory award. We have decided that no such deductions should be made having earlier found that in this case the appropriate sanction was a warning and not dismissal. It is not now open to us to say that the Applicant's conduct contributed to her dismissal. What it would have contributed to is a warning. Nor in all the circumstances of the case would it be just and equitable to make any deduction from our award. ......"

Anglian challenge that approach as a matter of law. We bear in mind the Court of Appeal's approach in Parker Foundry Ltd v Slack [1992] IRLR 11; that it is only the Applicant's conduct which can be taken into account, not the conduct of the employer, for example, the unfairness of the dismissal, when considering the question of contribution.

The proper approach is that laid down in the judgment of Lord Justice Brandon in Nelson v BBC (No.2) [1980] ICR 110. Was the Applicant guilty of culpable or blameworthy conduct which caused or contributed to her dismissal? If so, is it just and equitable to reduce the basic and/or compensatory award? If so, by what percentage, bearing in mind that in a proper case different percentage reductions to the basic and compensatory awards may be made. Rao v Civil Aviation Authority [1994] ICR 495.

In our judgment this appeal is arguable on the basis that the Tribunal impermissibly barred themselves from considering the question of contribution on the grounds that they had earlier found that the appropriate sanction by the employer was a warning and not dismissal, rather than to follow the guidance to which we have referred.

Accordingly we shall allow the matter to proceed to a full hearing, to be listed for two hours, category C. There are no further directions, save for exchange of skeleton arguments and copies to be lodged with this Tribunal not less than 14 days before the date fixed for the full appeal hearing.