The Employment Tribunal (ET) ruled that the dismissal had amounted to discrimination arising from a disability (as his depression was found to be a significant contributing factor in his behaviour). The dismissal was therefore also found to be unfair and the tribunal determined that Mr Hardy had not contributed to his own dismissal, meaning any compensation awarded would not be reduced. The ET justified this decision by stating, “We find that there was no contribution because we do not agree that a reasonable employer could regard the Claimant’s handling of the incident, although flawed, as an act of gross misconduct given the overall circumstances of the case.” Topps Tiles appealed the ruling on whether or not there was contributory fault by the employee.
The Employment Appeal Tribunal (EAT) accepted the appeal. The EAT found fault with the ET’s approach, as it had focused on whether the employer was justified in considering the conduct as gross misconduct, rather than evaluating the actual behaviour of Mr Hardy and its impact on the dismissal. Consequently, the case was remitted back to the same ET, which will now reassess the appropriate remedy.
It also reminds us that the compensation element of a tribunal award is subject to reductions if it is found that the employee had any ‘contributary fault’. In short, in this case it appears the ET considered only whether the employer was right to dismiss rather than whether the employee’s actions were ‘culpable and blameworthy’, which are two different things. The ET will now need to review this.
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