Unfair Dismissal: reduction to the basic award for blameworthy conduct

In an award for compensation for unfair dismissal, can the basic award be reduced for a Claimant’s blameworthy conduct?

Yes, but only where the conduct is proven and not simply an untested unproven allegation, held the EAT in Grange (Whitefield) Care Services v Joseph (UKEAT/0045/18/BA), dismissing the Respondent’s appeal.

 The Claimant was a care worker dismissed for gross misconduct for calling service users personally by mobile phone and giving gifts. There were also serious sexual allegations that were referred to the police, but not investigated by the Respondent and that did not form part of the decision to dismiss. The police investigated but brought no charges.

 The Claimant succeeded in a claim for unfair dismissal after judgment was entered in his favour when the Respondent failed to lodge a response to the claim. At a separate remedy hearing the Claimant was awarded a basic award and a compensatory award, both of which were reduced by 15% on the basis that the Claimant accepted there was some blame on his part in respect of the communications with the service user, for which he was dismissed.

The Respondent appealed to the EAT on the basis that the Tribunal had not taken into account the serious sexual allegations and sought a greater reduction in the basic award. The decision of the EAT highlights the difference in the way the basic and compensatory awards can be reduced. For a reduction in the compensatory award there needs to be a causal link between the relevant conduct and the dismissal, and in this case the serious sexual allegations did not form part of the decision to dismiss. For the basic award, a reduction can be made in respect of any conduct by the claimant if it is just and equitable to do so, whether or not the employer knew about it before the dismissal. However, according to the EAT the conduct must be blameworthy and proven. An allegation, such as the one in this case, however serious, is not proof that it occurred. Consequently, the appeal was dismissed.