Thread by @JasonBraier

1/ Wilkinson v DVSA: When provisions on reduction of contributory conduct are engaged, it's relevant to consider both the employer's & employee's blameworthy conduct in reaching the % reduction to be made.
assets.publishing.service.gov.uk/media/620516a7…
#ukemplaw

2/ W was a driving examiner. Rules prohibited examiners from driving candidates' cars. There was also a procedure in place where an examiner was required to terminate a test early. When this happened, neither the candidate nor examiner could drive back to the test centre.

3/ W had to terminate a test early because the candidate's driving endangered public safety. This was on a country road over 4 miles from the test centre. W called the instructor to confirm he was insured to drive it & then drove back to the test centre.

4/ W filled in a log & the required form on terminating a test early, but left the contents purposely vague so as not to reveal that he'd driven the car back to the test centre. He did so knowing that in driving he'd breached the DVSA code.

5/ When this was discovered, an investigation took place. W's manager emailed the investigating officer concerned that he couldn't now trust W. W was subsequently invited to a disciplinary, though the invite didn't list the allegations. At no point was W told of the email.

6/ W was dismissed for gross misconduct. An appeal failed. On W's unfair dismissal claim, the ET noted DVSA's process failures, particularly the lack of exploration of the trust breakdown issue. The ET found the dismissal unfair under s.98(4).

7/ The ET made a 100% contributory conduct reduction in the basic & compensatory awards, relying on the fact that W knowingly broke a strict rule & deliberately kept quiet about it (& as a former policeman knew the importance of compliance with rules).

8/ The ET considered Polkey, but didn't in fact make the reduction in the judgment (presumably in light of the 100% contrib reduction). The ET only considered whether W's manager would've changed his mind re trust given that W was allowed to work until dismissal & not suspended.

9/ On Polkey, the EAT noted no reduction was actually made, but held anyway the manager's email hadn't said trust had been "irretrievably" broken & noted he'd chosen not to suspend W. That suggested a belief trust could be restored. The ET's analysis was in error.

10/ On contrib conduct, the EAT noted that in Price & Gibson the EAT rejected submissions that an ET erred in finding culpable behaviour caused dismissal rather than a more narrow construction of s.123(6) that the cause was the employer's procedural failures.

11/ However, whilst accepting the ET considered relevant features of W's conduct under s.123(6), the EAT found the ET erred in leaving out of account the employer's blameworthy conduct. It's not relevant to engagement of s.123(6) but is relevant to apportionment of blame & thus %