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This case concerns

  1. the attribution of fault for a dismissal to an employee if the employee engages in misconduct outside of work that results in a prison sentence; and
  2. how the Employment Tribunal should approach the remedies of re-engagement and reinstatement

The facts in Prior v City Plumbing Supplies Ltd

Mr Prior (“the Claimant”) worked for City Plumbing Supplies Ltd (“the Respondent”) as a driver. In May 2008 he was convicted for homophobic behaviour towards a third party and subjected to a restraining order. In December 2008 he was convicted of the same offence and in June 2009 breached the restraining order. The Respondent gave the Claimant a final written warning in the last instance for bring its name into disrepute but received a complaint from a customer in March 2010 regarding the Claimant’s behaviour. He was given a further written warning which was subsequently overturned on appeal. However, in May 2010 the Claimant was convicted for breaching the restraining order and received a sentence of 18 weeks’ imprisonment, of which he actually served 9 weeks. He was dismissed as a result.

The Claimant subsequently submitted a complaint to the Employment Tribunal of unfair dismissal. The Employment Tribunal found that the period of time that the Claimant would have been absent from work was not sufficient to frustrate the contract of employment. There was not therefore a relevant fair reason under s.98 of the Employment Rights Act 1998 and a finding of unfair dismissal was arrived at. However, the Employment Tribunal found that the Claimant was two-thirds at fault for the dismissal and reduced his compensation accordingly. Further, the Employment Tribunal dismissed the Claimant’s contention that he should be reinstated or reengaged but did not give reasons for doing so. The Claimant appealed on the basis that:

  1. The Tribunal had made errors of law in concluding that the Claimant was guilty of contributory fault and had failed to specify the conduct which evidenced such. Further, the Employment Tribunal had failed to give sufficient reasons
  2. The Tribunal had failed to give any reasons at all for rejecting the Claimant’s request for an order for reengagement or reinstatement

The law relating to misconduct, unfair dismissal and contributory fault

In order for a dismissal to be fair, the Respondent must prove on the balance of probabilities that its reason to dismiss the Claimant fell inside one of the six potentially fair reasons specified in the Employment Rights Act 1996 (such as misconduct, incapability etc.). However, if the nature of the termination of the contract is such that one of the six potentially fair reasons doesn’t apply then Respondent’s often try and argue that the contract was frustrated on the facts – that it was impossible for the employee to fulfil his obligations to the employer (in this case the employee’s unavailability).

For an employee to be deemed at fault for his dismissal, the employee must (obviously) have been in some way culpable for their dismissal. The amount that the Employment Tribunal will reduce an award by depends on the unreasonableness of the employee’s conduct and the Tribunal has complete discretion as to the amount of the reduction (even up to 100%).

The Employment Appeal Tribunal’s decision in Prior v City Plumbing Supplies Ltd

The Employment Appeal Tribunal found in the Claimant’s favour on the second ground of appeal (the order for reengagement or reinstatement) but not on the first ground (contributory fault).

The EAT found that the Tribunal had specified what conduct the Claimant had engaged in that was unreasonable, and further determined that they had linked such unreasonable conduct to the dismissal. On that basis the Tribunal had reduced compensation by two-thirds (instead of the 100% requested by the Respondent). However, the failure to give any reasons at all for the rejection of the order for reengagement or reinstatement was an error of law. The matter was therefore remitted to the Employment Tribunal on this issue.

Our specialist employment lawyers’ thoughts on Prior v City Plumbing Supplies Ltd

As with many cases in the Employment Tribunal, this case centres on the Employment Tribunal’s sometime predilection to fail to give adequate reasons for arriving at a conclusion. A failure to give sufficient reasons is an error of law. If you have received a Judgment which (in your opinion) doesn’t fully set out reasons for the conclusion then you may have solid grounds for an appeal to the Employment Appeal Tribunal.

About Chris Hadrill

Chris is a specialist employment lawyer at Redmans. He specialises in contentious and non-contentious employment matters, including breach of contract claims, compromise agreements and Employment Tribunal cases. He writes on employment law matters on a variety of websites, including Direct 2 Lawyers, Lawontheweb.co.uk, LegalVoice, the Justice Gap and his own blog. Contact Chris by emailing him at chadrill@redmans.co.uk

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