Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

This case is one which concerns unfair dismissal and how the Employment Tribunal should deal with issues of contributory fault when liability has been determined and remedy is being deliberated. The Employment Tribunal failed to identify how the Claimant’s conduct could have been blameworthy, stated that he was at fault for issues he could not have been at fault for, and had misunderstood the application of the test of loss of mutual trust and confidence.

The facts in Cox v Northern Devon Healthcare NHS Trust

Mr Cox was employed by the Respondent as a maintenance assistant. He had become concerned about breaches of health and safety which could have put the well-being of patients and others at risk and submitted a grievance utilising the established whistleblowing procedures in place at his workplace in April 2006. In November 2007 the Respondent’s manager called a general meeting in which it was indicated that ill-founded and malicious complaints had been made. It was clear that efforts were being made to identify the source of the complaint. The Claimant was understandably concerned about this and complained to his employer that he should have been able to remain anonymous in his whistleblowing complaint. He further stated to his employer that he would cease working until this latest complaint had been resolved. The employer took his notice of withdrawal from work as a refusal to work and dismissed him on 19 November 2007. The Claimant appealed and the hospital management determined the decision to dismiss the Claimant was wrong. However, the Claimant was unhappy at being reinstated to his former post in the Estates Management department because of criticisms he had made of the running of the department. These issues were not resolved and the Claimant subsequently submitted claims for constructive unfair dismissal and, in the alternative, unfair dismissal.

The Employment Tribunal found that the Claimant had been unfairly constructively dismissed. However, it did consider that the Claimant’s compensation should be reduced by 80% because of his contributory conduct. The Claimant appealed on this point and the Respondent cross-appealed on the basis that the a Polkey reduction should have been applied (that the Claimant would have been dismissed anyway).

The law relating to compensation in unfair dismissal cases

If an employee is unfairly dismissed or unfairly constructively dismissed the award that the Claimant receives is split into two separate, broad heads – the basic award and the compensatory award. The basic award is calculated by multiplying together the Claimant’s length of continuous service, age, and weekly gross pay. The compensatory award is supposed to compensate the Claimant for financial loss relating to the loss of their employment – for example loss of earnings, loss of contractual benefits and the loss of their statutory rights.

Even if a Respondent is found to have unfairly dismissed an employee, there are a number of ways in which compensation can be reduced in an unfair dismissal case. These are:

  1. A failure to mitigate – the employee has a duty to attempt to find new employment as soon as possible after termination. If the employee unreasonably fails to find new employment (i.e. they don’t submit any job applications) then they will be penalised by a reduction in their compensation
  2. A Polkey reduction – Respondents often argue that Polkey reductions should apply – that the employee would have been dismissed anyway but for any procedural unfairness. If the Employment Tribunal believe this is the case then the employee’s compensation will be reduced to the relevant extent
  3. Contributory fault – if the employee is in some way at fault for their dismissal then the amount of compensation can be reduced to reflect this
  4. A failure to follow the ACAS code – if the employee has failed to follow the ACAS code (i.e. by not appealing a dismissal) then their compensation can be reduced to reflect this

The basic award and/or the compensatory award can be reduced (to nothing if the circumstances demand it). For the basic and compensatory award to be reduced it must be just and equitable to do so.

The Employment Appeal Tribunal’s decision in Cox v Northern Devon Healthcare NHS Trust

The Employment Appeal Tribunal held that the Employment Tribunal failed to identify how the Claimant’s conduct could have been blameworthy. The Employment Tribunal had failed to give sufficient reasons on this point. Further, he could not have been at fault for a number of the issues specified by the Employment Tribunal, and the Employment Tribunal had misunderstood the application of the test of loss of mutual trust and confidence.

Our specialist employment solicitors’ thoughts on Cox v Northern Devon Healthcare NHS Trust

This unfair dismissal case highlights how the Employment Tribunal can get things wrong sometimes. It also highlights the potential difference that representation can make in the Employment Tribunal – the Claimant was unrepresented throughout this case (even at the Employment Appeal Tribunal, a brave move) whilst the Respondent was represented by Counsel at the Employment Tribunal and subsequent appeals.

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

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

Your name

Your email

Your telephone number

Contact us

Please feel free to discuss your own position and concerns. Contact your nearest office on:

T: 020 3397 3603
E: enquiries@redmans.co.uk
W: www.redmans.co.uk

Testimonials

4.76 Average

176 Reviews

Mohamed A

Super helpful and efficient, trustworthy service

Posted 1 day ago

Anonymous

efficient, responsive and effective

Posted 2 days ago

Andrew B

Very good service

Posted 2 days ago

Anonymous

Excellent service, compassionate and a good outcome

Posted 3 days ago

Anonymous

I had an employment issue which required legal advice. Chris was very supportive and knowledgeable, resulting in an optimum resolution in my favour. Would definitely recommend.

Posted 1 week ago

David M

Very professional and first-rate advice. I would use again. With thanks,

Posted 1 week ago

Anonymous

Got the job done swiftly without going too much in to detail.

Posted 1 week ago

Derek W

Redmans dealt with my case very efficiently and I was happy with the outcome.

Posted 1 week ago

Anonymous

Timely professional advice!

Posted 1 week ago

Anonymous

Very good service

Posted 2 weeks ago

Anonymous

I was in contact with Chris and then worked with Caroline on an employment matter. I was very pleased with the service and professionalism throughout, and came away with satisfied with the outcome. Would happily recommend.

Posted 2 weeks ago

Nikki

Received advice re employment law. Chris was very helpful and advised accordingly. Would happily recommend them and if ever I need help again, will not think twice before using them.

Posted 3 weeks ago

Samantha K

Absolutely brilliant thank you. Caroline Lewis is a legend

Posted 2 months ago

Anonymous

The legal advice was clear and helpful.

Posted 2 months ago

Davinder P

Good Service

Posted 2 months ago

Adrian V

I was using Redmans services for a Settlement Agreement. Very quick and professional service. The outcome was favourable and I was very pleased with the amendments and results. Pretty glad to recommend them for any type of legal advice.

Posted 2 months ago

Anonymous

Very responsive, efficient, clear and supportive. Thank you! Highly recommend.

Posted 2 months ago

Tiago S

Chris was always prompt to help me with legal matters that are beyond my comprehension and very helpful leasing with my former employer. I would recommend Redmans Solicitors to everyone who needs help.

Posted 2 months ago

Anonymous

Fast and professional advice tailored to what was needed. Thanks for your help Chris Hadrill and team.

Posted 2 months ago

Peter S

Really pleased with the outcome and the advice I had from Chris and Sacha.

Posted 2 months ago

Harika A

Redmans solicitor's helped me with my settlement agreement, Chris has been very helpful throughout the process.He was very prompt in his responses and made my settlement look simple.Special thanks to Caroline for her efficient communication, thorough explaination of contract terminology and negotiations.I highly reccommend Redmans solicitors for anyone seeking employment related legal help.

Posted 2 months ago