The claimant resigned after a disagreement and wrote an email to her sister which contained comments that could have implied that the claimant might do harm to the respondent’s business or reputation. Later the respondent allowed her to rescind her resignation which she did. Unfortunately, she then printed out the email which the respondent found next to the photocopier while she was on leave. When she came back, the respondent asked for a meeting to discuss the email. The claimant was given no prior written notice of the possible outcome of the meeting. At the meeting, the claimant insisted that the email had been in her handbag and implied that it had been dishonestly removed from her possession by the respondent. The claimant claimed that the email had been written in a fit of rage but did not apologise. She did not say or do anything to indicate that she had not intended to cause harm to the respondent’s business. The respondent dismissed her, concluding that the relationship between them and the claimant had broken down, that she had deliberately given a dishonest explanation of the email having been in her handbag, and that in all the circumstances they could no longer trust her.  The claimant won her claim of unfair dismissal because the respondent had failed to follow the correct disciplinary procedures but they reduced her award by 80% for contributory fault. The claimant appealed.

The EAT rejected the argument that comments made by the claimant during the disciplinary hearing could not be used when assessing contributory fault. The EAT were satisfied that, when the Tribunal’s judgment  was read as a whole, it could not be said that they were not entitled to draw the conclusions regarding the claimant’s conduct.

_______________________

Appeal No. UKEATS/0037/11/BI

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH, EH3 7HF

At the Tribunal

On 24 January 2012

Before

THE HONOURABLE LADY SMITH, MR J M KEENAN MCIPD, MR M SMITH OBE JP

MRS SUSAN NELSON (APPELLANT)

MR DAVID CLAPHAM & MRS DEBRA CLAPHAM T/A CLAPHAMS SOLICITORS (RESPONDENTS)

JUDGMENT

**APPEARANCES**

For the Appellant
MS A ODDY (Solicitor)

Biggart Baillie LLP
No 2 Lochrin Square
96 Fountainbridge
Edinburgh
EH3 9QA

For the Respondent
MR R McKENZIE (Solicitor)

Harper MacLeod LLP Solicitors
The Ca'd'Oro
45 Garden Street
Glasgow
G1 3PE

**SUMMARY**

UNFAIR DISMISSAL – Contributory fault

Employment Tribunal's finding that Claimant contributed to her own dismissal to the extent of 80% upheld on appeal.

**THE HONOURABLE LADY SMITH****Introduction**

1. This is an employee's appeal from a judgment of the Employment Tribunal presided over by Employment Judge Roderick A MacKenzie, registered on 12 May 2011 finding that the Claimant was dismissed, making basic and compensatory awards but reducing both awards by 80% on the basis that the Claimant contributed significantly to her own dismissal.

1. We will continue referring to parties as Claimant and Respondents.

1. The Claimant was represented by Mrs M Paterson, representative, before the Tribunal and by Ms A Oddy, solicitor, before us. The Respondents were represented by Ms MacDonald, solicitor, before the Tribunal and by Mr R McKenzie, solicitor, before us.

**Background**

1. The Respondents are a firm of solicitors. There are two partners and one other qualified solicitor in the practice. They employed the Claimant, principally as a legal secretary, from 1 June 2009 until she was dismissed on 4 October 2010 on grounds of misconduct.

1. Much of the Respondents' work comes from clients based in the Clarkston area.

1. The Claimant had taken leave in August 2010. There was insufficient secretarial cover during her absence and Mrs Clapham spoke to her about that matter when she returned on 23 August 2010. She felt that she was being blamed unfairly by her employer for the difficulties that had arisen and was not happy about that.

1. The Claimant tendered her resignation on 24 August 2010. She emailed her sister the next day, on 25 August 2010, in the following terms:

"Ta much. Nothing happening today – the two Clappies going around here as if nothing has happened!!!! Hilarious – not even a word from any of them – I wouldn't stay here if they even asked me now anyway – nutters the two of them. She still looks white as a ghost though and complaining of feeling ill – shame!

Met Irene for lunch – looking positive about getting back to HBM – might only be as a floater at first but it doesn't matter as long as it's a job and it won't be full time either which is great. Can't wait to tell them if I go back there that will really kill them as they hate HBM and vice versa!!

Still, they might have had the decency to even speak to me about it – unbelievable. Like Calum by the way. Last night he and Rhuairidh had 9 toilet rolls down my staircase when I got home from work!! Buggers the two of them. Went to my class last night back at Shawlands Academy so great loads of space again. Told everyone about what happened they were all appalled. Telling everyone in Clarkston that I meet and they are all disgusted……she'll be sorry……

LOL Susan xx"

1. On 30 August 2010, the Respondents allowed the Claimant to withdraw her resignation.

1. On 23 September 2009, the Claimant printed out the above email.

1. On 24 September 2010, that print out of the Claimant's email to her sister was found and read by Mr Clapham. It had been lying by the photocopier in the office. The Claimant was on leave from that date for a short period. On 29 September, Mr Clapham left the email on her desk together with a note asking that she speak to him about it. By note dated 30 September, she advised Mr Clapham that she was happy to do so.

1. The Claimant was, accordingly, asked to attend a meeting to discuss the email. The meeting took place on 4 October 2010. The Claimant was not given prior written notice of the allegations to be discussed or the possible outcome of the meeting. At that meeting the Claimant insisted that the email had been in her handbag and implied that it had been dishonestly removed from her possession by the Respondents. It had not. She asserted that she had been carrying it around in her handbag since she withdrew her resignation – an assertion which, given the finding (based on the date on the print out found by Mr Clapham) that she had printed it out at a much later date, was manifestly ill founded. The print of the email cannot have been in her handbag from 30 August given that it was not printed out until over three weeks later, on 23 September. Rather, on the Tribunal's findings, the email came to be lying at the photocopier because of the Claimant's own carelessness (see paragraph 22).

1. The Claimant offered no explanation to the Respondents of the basis on which she accused them of somehow wrongfully removing the email from her possession. Much tension was, evidently, caused at the meeting by the Claimant making that assertion.

1. The Claimant was asked what she meant by stating she would be telling everyone in Clarkston. All that she said was that the email had been written in a fit of rage. She did not take the opportunity to apologise. She did not retract the views expressed in the email of 25 August. She did not say or do anything to indicate that she had not intended to cause harm to the Respondents' business.

1. In these circumstances, the Respondents concluded that the relationship between them and the Claimant had broken down, that she had deliberately given a dishonest explanation of the email having been in her handbag, and that in all the circumstances they could no longer trust her. She was, accordingly, dismissed.

1. The Claimant appealed and the appeal was heard by a panel which was not sufficiently independent, since two of its three members (Mr and Mrs Clapham), had participated in her dismissal. The appeal was rejected.

**The Tribunal's Reasons**

1. The Tribunal found the dismissal to have been procedurally unfair given the lack of written notice prior to 4 October, referred to above, and the constitution of the appeal panel.

1. The Tribunal also found that the Claimant had, as a matter of fact, contributed to her own dismissal. At paragraph 22, they state:

"We consider the claimant contributed significantly to her dismissal. The claimants' conduct was both unreasonable and unacceptable. The claimant from 29 September knew she was to meet Mr Clapham to explain her comments in the email sent on 23 August. She implied the respondents had come into possession of the email in a way that suggested almost criminal conduct by them. There was absolutely no basis for that implication. How could the respondents access her personal possessions or her computer to look for an email that they did not know existed? The email only came into possession of the respondents through the claimant's own carelessness. The claimant never made it clear the views she held on 23 August were not the views she held on 4 October nor did she attempt to explain what she meant by telling "everyone" how she had been treated. The terms of the email indicated an intention by the claimant that the respondents' business would suffer by what she said. The basic award and the compensatory award shall both be reduced by 80% to reflect the contribution the claimant made to her dismissal."

**Relevant law**

1. The issue being that of reduction of the basic and compensatory awards by reason of the Claimant's conduct, sections 122(2) and 123(6) of Employment Rights Act 1996 applied:

"122(2) Where the tribunal considers that any conduct of the complainant before the dismissal….was such that it would be just and equitable to reduce …..the amount of the basic award to any extent, the tribunal shall reduce…that amount accordingly.

...

123(6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."

1. The issue, for the application of both provisions, is thus very much one of fact.

1. The wording of section 123(6) reflects that in the earlier provisions of section 76(6) of the Employment Protection Act 1975. In commenting on the application of those provisions, in the case of Robert Whiting Designs Ltd v Lamb¹ this Tribunal (presided over by Kilner Brown J) observed that they covered:

"….matters which in fact existed and which played a part in the act of dismissal. In our view the proper approach is to decide first what was the real reason for dismissal and then to see whether the employee's conduct played any part at all in the history of events leading to dismissal. In some cases, set against the real reason, it may be apparent that the employee's conduct, even if reprehensible, was of no relevance whatsoever and made no impact on the situation. In the present case the employers made great use of the employee's conduct in the process of dismissal. They had every justification for so doing, for the conduct was extremely reprehensible."

1. As we observed in Kitsons Environmental Europe Ltd v Hendry², where an employee's conduct has contributed to his dismissal, the tribunal requires to:

"24…identify the conduct in question, consider its nature and decide whether the claimant was culpable in respect of it, to any extent. That will usually involve reaching a view as to the characterisation of the conduct."

1. As to what conduct can properly be characterised as culpable, we would refer to the discussion by the Court of Appeal in Nelson v BBC(No 2)³, in particular by Brandon LJ, at paragraph 44, where he observed:

"It is necessary, however, to consider what is included in the concept of culpability or blameworthiness in this connection. The concept does not, in my view, necessarily involve any conduct of the complainant amounting to a breach of contract or a tort. It includes, no doubt, conduct of that kind. But it also includes conduct which, while not amounting to a breach of contract or a tort, is nevertheless perverse or foolish, or, if I may use the colloquialism, bloody minded."

1. Dishonest conduct or conduct which amounts to misleading an employer, is plainly culpable and where it is, to any extent, causative of the dismissal, amounts to relevant contributory conduct. See, for instance, the conduct of the employee in [Lambert v Vicomte Bernard de Romanet Ltd]()⁴, where failure to disclose relevant information about prior illnesses in answer to a specific question on a job application form, thus misleading the employer, was held to be contributory conduct to the extent of 100% (even although not known about until after his dismissal)⁵.

1. Can conduct of the employee during the disciplinary process, including conduct at a disciplinary hearing, be relevant to section 122(2) and 123(6) considerations? We are satisfied that it can. It was suggested to us, at one point in the course of the appeal hearing, by Ms Oddy, that a tribunal is not entitled to take account of such conduct and she cited the case of Sidhu v Superdrug Stores⁶, as supporting that proposition. We do not read it as doing so. In that case, the employment tribunal had reduced compensation on the basis that the claimant could have done more to help himself in the disciplinary process by, for instance, calling witnesses to the disciplinary hearing. He was not criticised as having engaged in culpable or blameworthy conduct that was causative of his dismissal and, moreover, the matter not having in fact been in issue before the tribunal, it was conceded on behalf of the employers that it ought not to have been relied on by them. We see no reason why, if an employee engages in culpable conduct at the disciplinary hearing – such as by being dishonest or casting ill-founded aspersions of dishonesty on her employer – that conduct cannot be taken into account when considering reduction of the basic and compensatory awards. There is nothing in the wording of the relevant statutory provisions – where the terms "any conduct" and "any action" are wide and general - to suggest that such conduct should be excluded from consideration.

1. Finally, where the judgment of an employment tribunal is attacked on perversity grounds, it can only succeed if the tribunal reached a conclusion which no reasonable tribunal "on a proper appreciation of the evidence and the law" would have reached (Yeboah v Crofton .

**The appeal**

The Notice of Appeal

1. The grounds set out in the Notice of Appeal were all subject to an overarching submission that the Tribunal's decision to reduce the awards by 80% was perverse. It is said that the Tribunal made no findings to support the conclusion that the Claimant implied that the Respondent had engaged in "almost criminal conduct", that it was not permissible for the Tribunal to rely on things which the Claimant said or did not say at her disciplinary hearing, that the Tribunal had, in effect, deemed the Respondent's failure to investigate the circumstances of the sending of the email as unreasonable which meant that they could not at the same time criticise the Claimant for having failed to clarify the circumstances of sending it and that it was not open to the Tribunal to find the Claimant culpable in indicating an intention that the Respondent's business would suffer.

Submissions for the Claimant

1. In oral submission, Ms Oddy sought to argue that the Tribunal's judgment was not Meek compliant regarding the conclusion that the Claimant had implied that the Respondent had engaged in almost criminal conduct. If it was Meek compliant then they had erred in holding that it was an allegation of criminal conduct because the meeting had been sprung on the Claimant and these were words spoken by her in her own defence. As a generality, tribunals were not entitled to rely on what was said by employees at a disciplinary hearing as contributory conduct, a proposition for which she relied on the case of Sidhu. The Claimant was not, she said, blameworthy. She was just asking a question about where and how the Respondent got hold of her email. Also, since the Tribunal had observed that if there had been a fair procedure, the focus would not have been on the issue of how the email came into the respondent's possession, the Tribunal were wrong to find the Claimant culpable in having referred to it in the procedure that did take place. The Claimant would not, she said, have made the accusations that she made if a fair procedure had taken place. As for the Tribunal's criticisms at paragraph 22, the Claimant did, she said, give an explanation. She explained that the email was written in a fit of anger – she did not address the obvious question of how that could be so, given the lapse of time that had occurred between her meeting with Mrs Clapham and her writing the email. As to harming the Respondent, there was, she said, not in fact damage to their reputation as was recognised by the Tribunal; at paragraph 16, they had observed when the Claimant was allowed to withdraw her resignation and stayed in their employment, that would, no doubt, have had a positive effect on their reputation. In all the circumstances, the Tribunal's decision should be set aside and there should be no reduction in either award.

Submissions for the Respondent

1. For the Respondent, Mr McKenzie submitted that nothing said in support of the appeal met the test for perversity. Ms Oddy's submissions amounted, he said, to saying that the Tribunal should not have found the facts to be as they concluded they were. There was, however, no basis for doing so. It was not open to her to seek to interfere with the factual findings made by the Tribunal to the effect that the Claimant's conduct was culpable and contributed to her dismissal. There were plainly facts, which were not disputed, from which the Tribunal were entitled to draw those conclusions. He referred, in particular, to the date of the printing of the email (as shown on it) demonstrating that it cannot have been in the Claimant's handbag throughout the period she said that it was there. He also referred to a statement signed by another employee, Sheila McKenzie, that had been before the Tribunal which included the following:

"When Susan came back into the office after her meeting with David and Debra she said that she had no idea how the email had been left where it was as she had had it in her handbag. I said that the e-mail had not been folded and surely if it had been in her handbag it would have been folded. She then said that was not right and that it had been in a plastic folder in her shopper. I said that it had not been in a plastic folder but was lying under a plain sheet of paper. She then said that I was "no help at all"."

1. In short, the Claimant was dishonest with her employers, they were concerned about that, it was causative in her dismissal and the Tribunal were, accordingly, plainly entitled to conclude as they had done. Further, Ms Oddy was wrong to suggest that the Tribunal were not entitled to take account of the Claimant's conduct because it occurred at a disciplinary hearing.

1. As for the other matters, it was evident that the Claimant had not taken the opportunity to state that her views of the Respondent were any different from those stated in the email or to explain herself despite having stated that she intended to harm their business. Whilst it could be said that the Claimant was entitled to tell people how she felt, she was not entitled to do so in a way that caused them harm; she was, at that time, still an employee and bound by duties of trust and confidence. There was also nothing in the Tribunal's findings that showed they were satisfied that the Respondent's business would be positively affected by the Claimant's negative statements. The passage in paragraph 16 that was founded on by Ms Oddy was not to that effect.

1. The Tribunal had, he observed, found that the Claimant was engaged in unreasonable and unacceptable conduct and they were plainly entitled to do so. They gave adequate reasons which were able to be deduced from their judgment. It was plainly open to them to find that the Claimant had contributed to her dismissal by that conduct. In these circumstances, her argument that there should no reduction at all was not tenable. The appeal was, he submitted, misconceived.

1. Mr McKenzie referred, in the course of his submissions to the cases of Nelson, Kitsons, Lambert, Sidhu, English v Emery Reimbold & Strick Ltd⁷, and, to distinguish it, [Frew v Springboig St John's School]()⁸.

**Discussion and decision**

1. There is no basis on which we could find that the Tribunal fell into error. We are not persuaded that it would be open to us to conclude that the decision appealed against was perverse. We agree with Mr McKenzie that, as matters transpired, what the Claimant sought to argue was not that the Tribunal failed to take account of relevant fact, took account of irrelevant fact or, overall, reached a decision which no reasonable tribunal could, in the light of the relevant law, have reached. The test for perversity was not addressed. We accept the submissions made by Mr McKenzie in answer to the appeal.

1. The mainstay of Ms Oddy's submissions was really to seek to reargue the case and have a different view taken on the evidence, a task which is not for this Tribunal, where appeals are restricted to questions of law⁹. The only respect in which her submission did amount to one that the Tribunal had erred in law was that the Tribunal were not, as a matter of law, entitled to take account of the Claimant's conduct at the disciplinary hearing but, for the reasons we set out above, we reject that submission. The Tribunal were not wrong to do so. In any event, Ms Oddy did, at one point, appear to accept that they were not barred from taking account of conduct at a disciplinary hearing.

1. Otherwise, the Tribunal were plainly entitled to label the accusation levelled at the Respondent by the Claimant as being that they had engaged in conduct that was "almost criminal"; she was accusing them of having taken the email from her handbag without her knowledge or permission and having no right to do so. Regarding the suggestion that the Tribunal's judgment lacked adequate reasons, we cannot accept that that submission was well founded. It is plain that the Tribunal considered the Claimant's conduct to have been culpable and causative in her dismissal because its constituent parts (as summarised in paragraph 22) could properly be labelled as unreasonable and unacceptable and because they were satisfied on the evidence that that conduct - particularly her dishonest explanation about the email having been in her handbag, her failing to take the opportunity to set the record straight and her failing to provide any satisfactory explanation about the reference in her email to maligning the reputation of the Respondent – had in fact contributed to her dismissal. These were all matters for the Employment Tribunal, whose responsibility it was to decide what facts were established on the evidence and what inferences could properly be drawn from them. We are satisfied that, when the Tribunal's judgment is read as a whole, it cannot be said that they were not entitled to draw the conclusions regarding the Claimant's conduct that are contained in paragraph 22.

**Disposal**

1. There was no submission that the Tribunal were not, if there was culpable and contributory conduct on the part of the Claimant, entitled to conclude that the appropriate reduction should be 80%. We will, accordingly, dismiss the appeal and pronounce an order upholding the judgment of the Employment Tribunal.

1 [1978] ICR 89

2 UKEATS/0002/08/MT

3 [1979]IRLR346

4 UKEAT/0501/10/SM

5 The misleading conduct was held to be causative because the claimant would, had he answered the question honestly, never have been employed by the respondent in the first place.

6 UKEAT/0244/06/DA

7 [2002] EWCA Civ 605

8 UKEATS/0052/10/BI

9 See Employment Tribunals Act 1996 section 21.