‘Contributory Negligence’ (or contributory fault) is a phrase used to mean where an employee has behaved in a way that played a part in what happened to them. This could mean that they somehow contributed to their dismissal, in an unfair dismissal claim.
Although it is not specified as ‘contributory negligence’ in the Employment Rights Act, section 123(6) of that Act allows the Employment Tribunal to reduce the amount of the compensatory award for someone who has been unfairly dismissed if that person’s actions caused or contributed to the dismissal. The dismissal will still be unfair, but both your ‘basic’ award’ and your compensatory award may be reduced if you contributed towards your own dismissal.
In order to reduce the basic and/or compensatory awards because of the employee’s behaviour, there are 3 requirements to be met:
- The employee must have acted in a way that contributes to the dismissal. It could include being perverse, bloody-minded or foolish, but it must be blameworthy in some way.
- The behaviour must have contributed to the dismissal.
- It must be ‘just and equitable’ to reduce the award.
If the Employment Tribunal finds that an employee contributed to his or her dismissal, it must work this out as a percentage, and then apply it to the awards it has made.
An example of contributory negligence was the case of Montracon Limited v Hardcastle. Mr Hardcastle was employed as an HGV driver. He forgot the height of his trailer and drove into a bridge. Although the dismissal was found to be unfair, Mr Hardcastle had contributed to his dismissal, and had both his basic and contributory awards reduced.
Other examples where contributory fault might be used to reduce both basic and compensatory awards might include:
- An employee who is absent without permission, or who doesn’t follow reporting procedures for absence.
- An employer who breaks H&S rules and requirements even though no one is put at risk.