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Tribunal should have reduced compensation for conduct even though conduct was not the reason for dismissal

Posted by TonyBrownEmploymentSolicitor on August 5, 2013

Should a tribunal still consider whether it is appropriate to reduce compensation because of the Claimant’s conduct, even if that conduct was not the operative cause of his dismissal? Yes, according to the EAT.

The Claimant worked as a pastry chef at a bakery that prepared kosher food for the Jewish community. The Claimant said he was viewed as a ‘problem employee’ because he had taken the employer to tribunal over alleged wrongful deductions from his pay and for disability discrimination. There was more tension after the Claimant complained that his duties were not adjusted for his disability.

The conflict came to a head when the employer discovered that the Claimant had used non-kosher jam purchased from Tesco to bake a cake. As the bakery operated strict adherence to traditional Jewish standards, the use of a non-kosher ingredients could have had the catastrophic effect of the bakery being stripped of its licence by the Rabbi.

The Claimant denied he was responsible for the purchase of the jam but admitted using the jam to make the cake, knowing it was not kosher. The Claimant was dismissed after a disciplinary hearing "without (the employer) investigating any aspect of his defence”. The Claimant felt his employers were "simply waiting for him to do something wrong."

The ET concluded that, although the Claimant was guilty of gross misconduct by knowingly using non-kosher jam and this would have entitled his employer to dismiss him, the misconduct was not the reason for the dismissal but rather the fact that the Claimant was regarded as a problem employee for raising complaints in the past. In these circumstances, the tribunal ruled that dismissal was an act of victimisation and therefore unfair. The Claimant was awarded over £35,000 in compensation with no reduction for contributory fault.

The employer argued before the EAT that it was perverse for the tribunal to attribute an underlying motive for its actions when there could have been no other reason for the dismissal than the Claimant’s admitted gross misconduct in knowingly using non-kosher jam as an ingredient in the cake and this was a serious infringement of religious rules which could have prejudiced the employer’s business. It also argued that as the Claimant admitted misconduct no investigation was necessary.

The EAT rejected these arguments. It said that, in the context of its findings relating to the employer’s treatment of the Claimant, it was open to the tribunal to infer that the dismissal was an act of victimisation. However, the EAT agreed that the ET was wrong not to consider whether to reduce the Claimant’s compensation because of his conduct even where that conduct was not the operative cause of the dismissal.


In unfair dismissal, it is for the employer to prove that it dismissed the employee for one of the prescribed fair reasons (conduct, capability, redundancy etc.) In this case, although the Claimant admitted misconduct that would have justified his dismissal, the tribunal decided that the misconduct was a pretext for dismissal and that the real reason was retaliation because the Claimant was regarded a problem employee.

Although in this case the tribunal concluded that the Claimant’s misconduct was not the operative cause of the dismissal, the EAT ruled that the tribunal was wrong not to consider whether to reduce the Claimant’s compensation because of his conduct.

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to

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