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

124 Reviews

Brittany

I was very grateful for Redmans to treat my case with respect and discretion. At the time, I was very new to London and it was meaningful to have someone on my side and win the case for me. Without any doubt, I would definitely recommend Redmans Solicitors to anyone who is in need of it.

Posted 6 months ago

Jake L

Chris is very professional and calm. Very attentive and patient, been a positive experience having Chris represent me, and would recommend him.

Posted 7 months ago

Anonymous

Excellent service. It was a pleasure to work with Chris H, who is brilliant at what he does and very efficient. Their Senior Associate Rana T. is also very knowledgeable and resolves any queries speedily and efficiently. My issue could unfortunately not be resolved, but that was due to my employer and not the firm. Redmans however did all they could. I would definitely recommend them.

Posted 7 months ago

Anonymous

Very pleasant and quick to deal with. Mnay thanks.

Posted 7 months ago

Anonymous

Easy to get hold of. Quick.

Posted 8 months ago

Owen J

Very helpful, efficient service.

Posted 8 months ago

Anonymous

I am very lucky that I worked with Mr. Chris Hadrill and he managed my case very progressively with an analytical approach and trustfully. Of course with a very positive result. I strongly recommend Mr. Hadrill to any one seeking for a successful result from a highly qualified solicitor.

Posted 8 months ago

Kulbir S

Amazing, quick friendly service from Chris from the start and Caroline. They made me feel at ease during a difficult time, they understood and advised accordingly and I am really happy with the outcome of my case. Will always advise anyone who needs legal advice to contact Redmans, I’m so glad that I did and can confidently say I don’t think any other firm could have handled my case any better. Well done guys, wish you all the best and please keep doing what your doing, simply the best!

Posted 8 months ago

Mark A

Excellent service - rapid and “to the point” advice given to ensure meeting the target time frame

Posted 8 months ago

Anonymous

Chris Hadrill kept me sane during the negotiations with my employer. He was courteous professional and he cared about doing the best he could for me. I will use Redmans again if ever I need an employment solicitor. Excellent service.

Posted 8 months ago

Muhammad Z

Awesome services. Professionals at their best .

Posted 8 months ago

Anonymous

Thanks for the advice and for negotiating a good outcome. Good to have the support at a very stressful time

Posted 8 months ago

Chloe F

My solicitor at Redmans was very helpful and efficient. Really pleased with the smooth service.

Posted 8 months ago

Anonymous

Chris was absolutely excellent. Clear and concise, offering sound advice.

Posted 8 months ago

Tim O

Experienced and competent advisors

Posted 8 months ago

Rachel A

Quick and expert assistance. I would highly recommend Chris for any of your legal needs.

Posted 8 months ago

Joe S

I was very happy with the service provided by Chris and the team at Redmans Solicitors. I felt very comfortable discussing all matters with Chris and am very grateful for all the help and guidance I was given throughout the whole process. I would definitely recommend Redmans Solicitors to friends and family!

Posted 8 months ago

Anonymous

I had a very good experience working with Chris Hadrill during a difficult and emotional time. This held true from the moment I spoke to him on the phone, to the end of the process. Overall, he was attentive, professional and highly supportive. He provided sound advice and clarity. It was the reviews that led me to Redmans! I was very happy to know they were all true. I highly recommend working with Redmans Solicitors. Thank-you to the entire team!

Posted 9 months ago

Anonymous

Good service

Posted 9 months ago

Anonymous

Excellent professional service. Highly recommend.

Posted 9 months ago

Rob O

Very prompt response and I could not fault the service. My solicitor listened carefully to the details of my case and I felt very confident in the advice I was offered. All emails and work done on my behalf with my former employer was of the highest standard and Redmans helped take a lot of the stress out of the situation for me.

Posted 9 months ago