1. I refer to the parties as the Claimant and Respondent, as below. This is the Full Hearing of the Respondent's appeal from a Judgment of the East London Employment Tribunal (Employment Judge Russell sitting alone on 4 July 2016; "the ET"), sent out to the parties on 5 July 2016. Mr Andrew, a friend of the Claimant who also happens to be a trade union representative, appeared for the Claimant then as he does today; the Respondent was then represented by a consultant from Peninsula Business Services, although not Ms Reece.

1. By its Judgment, the ET upheld the Claimant's complaint of unfair dismissal, finding that her dismissal was for some other substantial reason, namely a breakdown in trust and confidence, but was rendered unfair as the Respondent failed to follow a fair procedure. Finding that, following a fair procedure, the Claimant's employment would have been fairly terminated within a week, the ET awarded the Claimant a week's pay by way of compensatory award in addition to a full basic award and payment for loss of statutory protection. The Respondent appeals against the ET's finding that there was an unfair dismissal, and in any event, against its apparent failure to consider any reduction in the compensatory award by reason of the Claimant's contributory conduct. It has been made clear before me today by Ms Reece that there is no challenge to the ET's failure to consider a reduction in the basic award. The Claimant resists the appeal, essentially relying on the reasoning of the ET.

1. The Respondent is a man in his mid-30s who has severe learning disabilities, physical disabilities and unpredictable epilepsy; he is unable to speak but can communicate likes and dislikes by facial and body movements. He lives in his own home with the assistance of 24/7 care, managed by his mother, Mrs Pat Tolley, on his behalf. Mrs Tolley is a Court of Protection appointed Deputy responsible for staffing matters and the general oversight of her son's care. Understandably, her aim is to aid his wellbeing and independence insofar as that is possible.

1. From May 2008, the Claimant had been employed as a personal assistant to the Respondent, one of a team of seven, which included her daughter and the Respondent's sister, Ms Edwards, who was another Court appointed Deputy for him. In October 2015, Mrs Tolley received statements from three of the other members of the team charged with providing care for the Respondent, including Ms Edwards, in which concerns were raised about the Claimant and the way in which she carried out her duties. Mrs Tolley arranged a meeting with the Claimant, who was accompanied and represented by Mr Andrew, having first sent her copies of the statements she had received. On the Claimant's behalf Mr Andrew challenged the statements, questioning whether there had been any collusion and disputing their accuracy. For her part, the Claimant made clear that she would never hurt the Respondent or let anyone else hurt him; she thought the world of him and loved him to pieces.

1. After that meeting Mrs Tolley took further statements from the two complainants other than Ms Edwards. Those additional statements provided substantially more information than had originally been given. Mrs Tolley did not forward the additional statements to the Claimant but took them into account when considering the effect upon the Respondent if the staff were at loggerheads and might leave. Mrs Tolley was concerned that the Claimant was ignoring the management plan for the Respondent and failing to follow proper process, which was affecting the staff's ability to work together. Although taking into account the Claimant's length of service, she had noted an apparent change in attitude in the preceding few months and was satisfied that the content of the statements from other staff members was true.

1. On 20 October 2015, Mrs Tolley informed the Claimant that her employment was being terminated on seven weeks' notice as the relationship had broken down and she no longer wanted the Respondent to receive personal care from the Claimant. Mrs Tolley referenced the Claimant's rejection of the statements that had been disclosed to her but stated her conclusion that the relationship between the team had broken down and said she had lost confidence in the Claimant's ability to care for her son. The two supplementary statements were still not brought to the Claimant's attention.

1. The Claimant appealed, and a hearing took place in November 2015 chaired by the Respondent's uncle, Mr Ray Smith. Mr Smith saw all the statements, including those provided after the October meeting with the Claimant, albeit they were still not provided to her. Again, the Claimant denied the concerns raised against her. After the appeal meeting Mr Smith spoke with the employees who had made the statements and, on all the evidence available to him, concluded the appeal should be dismissed; he could find no evidence of collusion and considered that in the difficult situation of providing close personal care the relationship had irretrievably broken down.

1. By the conclusion of the ET hearing it was common ground that the Claimant had been dismissed for some other substantial reason, namely Mrs Tolley's belief that she could no longer have trust and confidence in the Claimant's ability to look after the Respondent. Although to some extent sharing the Claimant's concern about the chronology and timing of the three statements from the other members of the care team, the ET was satisfied the evidence before Mrs Tolley was sufficient to found a genuine belief that she could no longer have trust and confidence in the Claimant's continued employment and ability to work as a team with her colleagues. That was a substantial concern and justified Mrs Tolley's conclusion that the working relationship had irretrievably broken down and warranted dismissal. Allowing that the Respondent as employer in this case was a severely disabled person acting through the agency of his mother, the ET reminded itself that it should not expect too high a degree of sophistication in terms of the process followed. Mrs Tolley had sought to follow a fair procedure, had made the Claimant aware of the concerns against her, provided her with copies of the original statements, and called her to a hearing at which she was able to set out her case and answer the concerns. That said, the ET went on:

"32. However, having decided to undertake further investigation after the hearing on 14 October 2015 and to obtain substantial additional evidence upon which she subsequently relied, it was incumbent upon Mrs Tolley both to provide that additional information to the Claimant and also to give her a proper opportunity to comment upon its contents. It was fundamentally unfair of Mrs Tolley to proceed to make a decision based upon considerable additional relevant evidence which the Claimant had never seen and did not have the opportunity to refute. This failure persisted throughout the appeal process and was not remedied by Mr Smith."

1. Applying the range of reasonable responses test, the ET concluded the failure to provide the Claimant with the additional statements was not a minor matter; it deprived her of the ability to know the bulk of the detailed case against her, whilst the additional information was relied on by Mrs Tolley and Mr Smith. That, the ET concluded, took the overall procedure outside the range and rendered the dismissal procedurally unfair.

1. Going on to consider matters relevant to remedy, the ET observed that the procedural failing it had found in this case was not a matter expressly addressed in the ACAS Code of Practice and it did not consider that there was any basis for imposing an uplift in that regard. Considering the effect of the procedural breach, the ET, having regard to what the Claimant had said both in the internal hearings but also before the ET itself (by which time she had seen the additional statements), the ET concluded that had she been provided with the two supplemental statements before her dismissal the Claimant would have maintained her position, in particular that the concerns raised against her were matters of fabrication or exaggeration. In those circumstances, the ET concluded that Mrs Tolley would clearly still have taken the view that the Claimant's employment should be terminated given the importance of teamwork and trust and confidence in when providing intimate personal care. If the additional statements had been provided to the Claimant, the disciplinary process would have been delayed by only a further week; thereafter, Mrs Tolley would - and could - have fairly dismissed the Claimant. The Claimant's compensatory award would thus be limited to one week's net pay.

1. The first question raised by this appeal concerns the ET's approach to the finding of fairness for the purposes of section 98(4) of the Employment Rights Act 1996 ("ERA"). Determining fairness requires consideration both of substance and process. The fact that a fair procedure would ultimately have made no difference does not mean that the dismissal should be considered fair, Polkey v A E Dayton Services Ltd [1988] 1 AC 344 HL: the test is whether the employer's decision in the light of the circumstances known at the time, not the actual consequences of any failure in process, fell within the band of reasonable responses open to a reasonable employer. As Lord Mackay of Clashfern said at pages 354H to 355C:

"… the subject matter for the tribunal's consideration is the employer's action in treating the reason as a sufficient reason for dismissing the employee. It is that action and that action only that the tribunal is required to characterise as reasonable or unreasonable. That leaves no scope for the tribunal considering whether, if the employer had acted differently, he might have dismissed the employee. It is what the employee did that is to be judged, not what he might have done. On the other hand, in judging whether what the employer did was reasonable it is right to consider what a reasonable employer would have had in mind at the time he decided to dismiss as the consequence of not consulting or not warning.

If the employer could reasonably have concluded in the light of the circumstances known to him at the time of dismissal that consultation or warning would be utterly useless he might well act reasonably even if he did not observe the provisions of the code. Failure to observe the requirement of the code relating to consultation or warning will not necessarily render a dismissal unfair. Whether in any particular case it did so is a matter for the industrial tribunal to consider in the light of the circumstances known to the employer at the time he dismissed the employee."

And see the speech of Lord Bridge at page 364E-G (referring to section 57(3) of the Employment Protection (Consolidation) Act 1978, the predecessor provision to section 98(4)):

"… If an employer has failed to take the appropriate procedural steps in any particular case, the one question the industrial tribunal is not permitted to ask in applying the test of reasonableness posed by section 57(3) is the hypothetical question whether it would have made any difference to the outcome if the appropriate procedural steps had been taken. On the true construction of section 57(3), this question is simply irrelevant. It is quite a different matter if the tribunal is able to conclude that the employer himself, at the time of dismissal, acted reasonably in taking the view that, in the exceptional circumstances of the particular case, the procedural steps normally appropriate would have been futile, could not have altered the decision to dismiss and therefore could be dispensed with. In such a case the test of reasonableness under section 57(3) may be satisfied."

1. Parliament has expressly stated that fairness is a matter to be assessed by the ET, and I remind myself that it will not be open to the EAT to interfere with that assessment unless it is founded upon an error of law, failed to address that which was relevant, took account of that which was irrelevant or can properly be described as perverse.

1. The second basis of challenge in this appeal relates to the ET's failure to make any reduction in the compensatory award in respect of the Claimant's conduct. The relevant statutory provision in this regard is found at section 123 ERA:

"(1) Subject to the provisions of this section and sections 124, 124A and 126, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.

…

(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. Section 123(6) requires the finding of a causative relationship between the conduct and the dismissal (see Steen v ASP Packaging Ltd , although the use of the word "contributed" makes plain that the employee's conduct need only be a factor in the dismissal; it need not be the direct and sole cause. The focus required by section 123(6) must be on what the employee did: the employer's decision and conduct is relevant to the ET's assessment of fairness, but the issue of contributory fault requires an assessment by the ET of the employee's conduct. Moreover, the question of causation or contribution relates to the dismissal, not the unfairness of the dismissal.

1. More generally, it is open to an ET to find that a Claimant's conduct has contributed to her dismissal notwithstanding that it is for a reason other than conduct (see for example Moncur v International Paint Co Ltd [1978] IRLR 223 EAT (Phillips J presiding); and Finnie v Top Hat Frozen Foods [1985] ICR 433 EATS (per Lord McDonald), albeit that was a case where the reason for the dismissal had included the conduct of the employee). The requirement remains, however, that the employee's conduct be culpable or blameworthy in some way (see Nelson v BBC (No. 2) [1980] ICR 110 CA and Slaughter v C Brewer & Sons Ltd [1990] ICR 730 EAT, which allowed that a deduction for contributory fault might still be permissible where the dismissal was by reason of capability due to ill-health).

1. Even when the issue of a contributory fault reduction is not raised before the ET, if it has found that there was conduct on the part of the employee that was or could be regarded as blameworthy the ET will be required, given the language of the statutory provision, to consider contributory fault; see Swallow Security Services Ltd v Millicent UKEAT/0297/08, a decision in which the obligation was described as follows:

"27. … there is, in section 123(6), an express obligation upon the Tribunal if it finds that the dismissal was to any extent caused or contributed to by any action of the Claimant (which conduct must be blameworthy …) to make a reduction in compensation to the extent that it considers it just and equitable to do so. In our judgment it follows that, if in the course of their deliberations, a Tribunal concluded that there had been such causative and blameworthy conduct, the Tribunal would be bound to apply section 123(6), whether the issue of contributory fault had been raised by the employer or not. The Tribunal [is] statutorily required so to do. Further, in our judgment, in any case before the Tribunal in which the facts are such that a finding of contributory fault may appropriately be made, the Tribunal are bound to consider the issue, raise it with the parties, and decide whether there has or has not been contributory fault and whether a deduction for contribution should be made. We do not accept Mr Masarella's argument [for the Respondent] that the trigger for the Tribunal's duty to consider the issue has to be a finding that here has been contributory fault; for if the Tribunal do not raise the issue, such a finding, however appropriate it might have been, may never be made. The trigger must arise at an earlier point, such as that which we have described."

1. If there is no such finding by the ET, however, an employer cannot suggest for the first time on appeal that it ought to have made such a finding (see the discussion in Swallow at paragraphs 36 to 41). Ultimately, it is for the ET to take a broad commonsense view as to what part if any the employee's conduct played in the dismissal and then in the light of that finding to determine the level of any reduction, an assessment that the ET is best placed to make and with which the EAT would only interfere if there was an error of law or the decision was perverse.