Understanding Contributory Fault in Unfair Dismissal Claims

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When Your Own Actions May Affect Your Compensation: Understanding Contributory Fault in Unfair Dismissal Claims

If you’ve been unfairly dismissed from your job, you may be entitled to compensation. However, it’s important to understand that not all compensation is guaranteed, especially if your own actions played a part in your dismissal. This is where the concept of contributory fault comes in.

In this article, we explain what contributory fault means, how it might affect your award, and what you should know before bringing a claim.


What Is Contributory Fault?

Put simply, contributory fault is when an employee's own behaviour contributed to their dismissal. If a tribunal finds that you were partly to blame for the dismissal, even if the dismissal was still technically unfair, your compensation could be reduced, sometimes significantly.


This doesn’t mean the dismissal becomes fair. It just means that your own conduct is taken into account when calculating how much compensation you receive.


How It Works

There are two parts of an unfair dismissal award that could be affected by contributory fault:

  • The basic award: This is a fixed formula based on your age, length of service, and weekly pay.
  • The compensatory award: This covers actual financial loss from the dismissal, like lost earnings and benefits.


The rules for reducing each award are slightly different:

  • For the basic award, any blameworthy behaviour you engaged in before your dismissal could justify a reduction — even if your employer didn’t know about it at the time of the dismissal. There is no need for the conduct to have caused or contributed to the dismissal. 
  • For the compensatory award, the tribunal must reduce it if your behaviour actually caused or contributed to your dismissal and a reduction would be just and equitable. Your conduct must also be culpable or blameworthy. 


How Much Can My Award Be Reduced?

In theory, the reduction could be anywhere from 1% to 100%. Yes, a tribunal can find that you were unfairly dismissed but still decide not to award you any compensation at all if your conduct was serious enough. This is rare, but possible.


For example, in a case involving a dismissed employee who approved payments without proper documentation, the tribunal found the dismissal unfair due to procedural flaws but still reduced compensation by 25% because of the employee’s own misconduct.


What Type of Behaviour Counts?

The key question the tribunal asks is: Was the employee's conduct blameworthy? It doesn’t have to be the main reason for dismissal, but it must have played a part.


Examples include:

  • Misconduct such as dishonesty or breaching company rules.
  • Refusal to carry out reasonable instructions.


Importantly, the focus is on your actions, not your employer’s. Even if your employer acted poorly, your own conduct still matters when calculating your award.


Can the Employer’s Conduct Still Matter?

While the tribunal's focus is primarily on your conduct, recent cases have clarified that the employer's behaviour isn’t entirely irrelevant. If the employer used your conduct as a pretext, or a convenient excuse, to justify a dismissal they wanted to make for other reasons, this could influence whether, and how much, your compensation is reduced.


What If There’s Also a “Polkey” Deduction?

Tribunals may also apply what’s called a Polkey deduction, which reduces compensation to reflect the chance that you would have been dismissed anyway, even if a fair process had been followed.


Contributory fault is separate from Polkey, and if both apply, the tribunal must clearly explain each deduction and avoid “double counting” the same issue.


Final Thoughts

If you’re thinking of bringing a claim for unfair dismissal, be honest with your solicitor about any conduct issues that may arise. It doesn’t necessarily prevent you from succeeding, but it can affect your compensation.


Understanding how your own actions may impact your case is key to being prepared and managing expectations.

If you have concerns about how contributory fault might affect your claim, feel free to get in touch for tailored advice.


Listen to the audio version of this article below

Article by

Sally Eastwood
Senior Associate

0800 915 7777

At Springhouse Solicitors we offer a range of services, so please contact our friendly customer services team to discuss further via  hello@kilgannonlaw.co.uk or  0800 915 7777.



Disclaimer 

The above provides a general overview of areas in employment law and is not intended nor construed as providing specific legal advice.  This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice.

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