Contributory behaviour when assessing an award for unfair dismissal – Daly v BMI Healthcare Ltd [2021] UKEATS/0009/19/SS

On occasion, even if an employee has been found to be unfairly dismissed, their own behaviour can be said to have contributed to the dismissal in such a way as to give rise to a reduction in any award to which they might otherwise be entitled. This is dictated by s123 of the Employment Rights Act 1996 (‘the Act’), which states:

Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.


The Claimant was held to have been unfairly dismissed by the Respondent. This was due to the fact that the Respondent’s reasons for dismissing him were failures to comply with requests not to contact management and to attend a meeting, whereas the true nature of the reasons was found by the tribunal to be the manner of the Claimant’s communications and his behaviour generally.

The tribunal accordingly concluded that the Respondent’s stated reason for dismissing the Claimant was not genuine and was a sham, as the Respondent had been looking for a legitimate route to dismiss an impossible-to-manage employee.

The remedy

The tribunal made a finding in terms of s123 of the Act reducing the award due to the behaviour of the Claimant leading up to the dismissal. They concluded that he had contributed substantially to his dismissal, and in any event would have been dismissed within six months of the actual date of dismissal. As such, the award was reduced by 75%, which took the total monetary award for unfair dismissal to £8,870. This is in line with the case of Polkey v AE Dayton Services Ltd [1998] ICR 142 which stated that:

There is no need for an “all or nothing” decision if the [employment] tribunal thinks there is a doubt whether or not the employee would have been dismissed, this element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment.

The appeal to the Employment Appeal Tribunal

The Claimant appealed to the EAT on the grounds that the tribunal had made a perverse decision regarding the likeliness of his dismissal had the unfair dismissal not occurred, and also that the tribunal erred in law by making an assumption that any warning the Respondent gave the Claimant would not have been headed. There was also a ground relating to the purported failure of the tribunal to give reasons for its conclusions.

The decision of the Employment Appeal Tribunal

The test for perversity is a high one, and the conclusion which the tribunal reached needs to be irrational, offend reason, be certainly wrong, make absolutely no sense, or not be a permissible option on the facts in order to succeed. The EAT did not consider that the tribunal had made a perverse decision, as there was plenty of evidence that the Claimant had become unmanageable. The test in

The EAT also concluded that the tribunal had reached logical and comprehensible reasons for its conclusion, and had laid them out.

Accordingly, the appeal was dismissed.

Link to judgment: