Prior v City Plumbing Supplies Ltd EAT/0535/11
unfair dismissal | criminal offence outside workplace | contributory fault
The Employment Appeal Tribunal (EAT) has affirmed the employment tribunal’s decision that an employee who was unfairly dismissed because the employer believed his prison sentence frustrated his contract of employment was guilty of contributory conduct.
Implications for employers
- Where an employee has been imprisoned and the employer deems it appropriate to dismiss the employee after following a proper procedure, the employer should ensure that it dismisses for the correct potentially fair reason.
- If an employer unfairly dismisses an employee and there is a causative link between the employee’s conduct that is said to be blameworthy and the unfair dismissal, the employer will have an argument that the employee is guilty of contributory conduct.
Mr Prior was employed by City Plumbing Supplies Ltd as a driver. In May 2008, Mr Prior was convicted of an offence related to homophobic behaviour towards a neighbour and given a community sentence and restraining order. In December 2008, Mr Prior was again convicted of this offence, and this time given a sentence of 12 weeks’ imprisonment, suspended for 12 months. In June 2009, Mr Prior was arrested for breaking the restraining order. In response to his arrest, the company issued him with a final written warning for bringing it into disrepute. In May 2010, Mr Prior was sentenced to 18 weeks’ imprisonment for breaking the restraining order. He was required to serve half his sentence.
The company dismissed Mr Prior as a result of his prison sentence. The company’s reason for his dismissal was not misconduct, but rather frustration. The company believed that Mr Prior’s contract of employment had been frustrated by his prison sentence. Mr Prior, who was by this point out of prison, appealed his dismissal, which was unsuccessful. He subsequently brought a claim for unfair dismissal.
The employment tribunal found that Mr Prior had been unfairly dismissed. It held that Mr Prior’s prison sentence was not long enough to create frustration, and therefore that the company had not established a fair reason for dismissal. In addition, it rejected the company’s other argument that it had fairly dismissed Mr Prior for “some other substantial reason”. However, the employment tribunal said that, in respect of contributory fault, “the catalyst for the dismissal was the imprisonment of [Mr Prior]”. On this basis, it found that Mr Prior had significantly contributed to his departure from the company. As a result of this, the employment tribunal reduced Mr Prior’s compensation by two thirds, awarding him £6,050.29. It also refused Mr Prior’s application for an order for re-engagement.
Mr Prior appealed the employment tribunal’s rulings on contributory conduct and reinstatement or re-engagement. The company did not appeal the finding of unfair dismissal.
The EAT dismissed Mr Prior’s appeal against the employment tribunal’s decision on contributory conduct. The tribunal applied the principles for contributory conduct established in cases such as Nelson v British Broadcasting Corporation (2)  IRLR 346 CA that there must be blameworthy conduct and that blameworthy conduct must have caused or contributed to the dismissal. The EAT noted that the fairness of the dismissal is not relevant to the question of a causative link between the blameworthy conduct and the dismissal. The EAT held that it was clear from the employment tribunal’s judgment that the conduct the employment tribunal considered blameworthy was Mr Prior’s imprisonment and that this was causatively linked to his dismissal by virtue of it being the catalyst for the dismissal.
The EAT went on to apply the well-established proposition that an employment tribunal’s assessment as to the amount of a reduction it makes for contributory fault may be interfered with only on appeal where there has been some error in principle or perversity. On the basis that there had been neither in this case, the EAT said that it would not be appropriate for it to interfere with the employment tribunal’s decision on this matter.
The EAT allowed Mr Prior’s appeal on the issue of reinstatement or re-engagement. It said that the employment tribunal’s failure to give any reasons for its decision to refuse an application for an order of reinstatement or re-engagement was an error of law. The EAT therefore remitted the issue back to the employment tribunal to reconsider and give reasons.
Interestingly, the EAT noted that, if the company had “decided to dismiss for misconduct, the prospects of a finding of unfair dismissal might not have been great”.
Case transcript of Prior v City Plumbing Supplies Ltd (Microsoft Word format, 76.5K) (on the EAT website)