Constructive Dismissal – Reducing Compensation Due to Contributory Fault on Behalf of Claimant

In the case of Frith Accountants Ltd v Law UKEAT/0460/13/SM, the EAT had to consider whether or not compensation should have been reduced due to contributory fault on behalf of the claimant.

Background
In this particular case, the claimant Mrs Law, was a 62 year old accountant who claimed constructive dismissal due to an alleged breach of trust and confidence on the part of the respondent Frith Accountants.
Frith Accountants had began to have doubts about the claimant’s performance and ability to carry out the claimant’s work; however instead of speaking about this with her directly, they raised concerns via Mrs Law’s son. Upon discovering this, the claimant resigned and the tribunal agreed that she had indeed been constructively dismissed due to a breach of trust and confidence on behalf of the employer. Nonetheless, the tribunal seemed to agree that Frith Accountants had acted out of genuine concern, and that they believed they had been doing the right thing.
The respondent appealed the award, arguing that the compensation should have been reduced due to contributory fault on behalf of the claimant. The ET found that they did not accept that the claimant had contributed to her own dismissal, even if there had been genuine concerns regarding her performance. The respondent argued that the claimant had contributed to her own dismissal by failing to accept that she had made any mistakes.     They had not, however put this directly to Mrs Law at any point. Further, the tribunal had assessed the risk of future dismissal at 40%. This was also challenged by the respondent who argued that they should have assessed the risk of future dismissal as higher.

EAT
At EAT, there were three grounds for appeal to consider. The tribunal accepted Ground B of the appeal, but rejected Grounds A and C. Ground A was related to whether or not the tribunal had erred in finding that there had been no reduction by reason of contributory fault under section 123 (6). Ground C related to the point regarding the assessment of risk of future dismissal and whether this should have been higher than 40%. What the EAT did agree with is that the tribunal had failed to consider or make any express finding as to whether or not there should have been a reduction in the basic award under section 122 (2).

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