A recent decision of the Employment Appeal Tribunal (EAT) is a useful reminder that, even where an employee’s conduct is criticised (in this case wrongly), it does not automatically justify wiping out unfair dismissal compensation altogether.

The case shows the limits of arguments employers often run after losing on liability - namely that, whatever went wrong procedurally, the employee would have been dismissed anyway and therefore deserves nothing.

The background

In Kesheva v Secure Frontline Services Limited, Ms Kesheva worked as a door supervisor and had 3 years service.

During a shift, she had an argument with a colleague and left work part-way through the shift. Before doing so, she told her team leader that she was leaving.

Her employer dismissed her for gross misconduct. No investigation was carried out and no disciplinary process was followed. Ms Kesheva was not given an opportunity to explain her actions.

She brought a claim for unfair dismissal.

The Employment Tribunal’s decision

The Employment Tribunal had little difficulty concluding that Ms Kesheva had been unfairly dismissed. The employer had failed to follow even the most basic procedural steps.

However, when it came to compensation, the Tribunal took a very different approach. It decided that both the basic award and the compensatory award should be reduced by 100%.

The Tribunal reasoned that Ms Kesheva’s failure to telephone her employer later that night amounted to gross misconduct. On that basis, it concluded that she should receive no compensation at all, despite the dismissal being unfair.

Ms Kesheva appealed that decision.

The Employment Appeal Tribunal’s view

The EAT held that the Tribunal’s approach to compensation could not be supported on its own findings of fact.

The Tribunal had already found that:

• Ms Kesheva informed her team leader that she was leaving, and
• There was nothing in the employer’s policies (such as code of conduct) requiring an employee to make further contact by telephone in those circumstances. There was also no mention of this being the reason for the dismissal in the ET3 Response (defence to the claim). 

Even if such a requirement had existed, the EAT said that a failure to telephone on the facts of this case would not have amounted to gross misconduct.

The EAT substituted a finding that Ms Kesheva’s conduct did not amount to gross misconduct and sent the case back to a new Tribunal to decide the compensation. 

A practical takeaway for employees

This decision is a helpful reminder of:

• First, while Tribunals can reduce compensation for contributory fault, a 100% reduction is unusual. It requires clear and careful justification based on the facts.
• Secondly, employers frequently rely on the label “gross misconduct”, but labels are not decisive. What matters is what the employee actually did, whether that conduct breached any clear rule or policy, and whether dismissal was a reasonable response.

If you’ve been told that your dismissal was unfair but that your own conduct means you’ll “get nothing,” don’t take that at face value. This case shows that such arguments can fall apart under closer legal scrutiny.

If you’ve been dismissed and told you’re not entitled to compensation, seek legal advice before accepting that position. You may have a strong case for challenging those assumptions and securing the compensation you deserve.

Article written by
Sally Eastwood

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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