This guide is maintained as a current resource for September 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
Comprehensive guide to contributory fault in UK Employment Tribunal compensation. Explains how and when an employee's conduct may reduce awards, statutory provisions, practical examples, and how Tribunals assess fault and compensation.
In employment law in England and Wales, contributory fault is an important concept that can reduce the amount of compensation an employee receives even after successfully proving an unfair dismissal or other tribunal claim. This principle reflects the idea that, if an employee's own conduct played a part in causing their dismissal, a Tribunal may decide that it is fair to reduce the compensatory award. This article explains contributory fault clearly, the legal framework that applies, how it works in practice, and what both employees and employers need to understand about its effect on tribunal compensation.
What Is Contributory Fault?
Contributory fault (also called contributory conduct) arises when an Employment Tribunal finds that the employee's conduct helped cause or contribute to the dismissal or other adverse outcome for which compensation is claimed. If contributory fault is established, the Tribunal can reduce the amount of compensation it awards. This reduction is guided by statute and Tribunal practice, and can affect both basic and compensatory awards in unfair dismissal claims.
Statutory Basis
The legal basis for contributory fault in unfair dismissal claims is found in the Employment Rights Act 1996 (ERA 1996):
- Section 123(6): Where the Tribunal finds that the dismissal was caused or contributed to by actions of the employee, it shall reduce the compensatory award by such proportion as it considers just and equitable having regard to that finding.
- Section 122(2): The Tribunal may also reduce the basic award if the employee's conduct before dismissal makes it just and equitable to do so.
These provisions direct the Tribunal to consider contributory fault whenever the employee's behaviour is blameworthy and has contributed to the dismissal.
How Employment Tribunals Apply Contributory Fault
Employment Tribunals carry out a two‑stage assessment when considering contributory fault:
- Establishing conduct and contribution: The Tribunal must determine whether the employee's conduct was culpable or blameworthy and whether it caused or contributed to the dismissal. Not all poor behaviour will qualify; it must be more than unreasonable actions and must link to the dismissal itself.
- Just and equitable reduction: If contributory fault is established, the Tribunal then considers what proportion of the award should be reduced. This involves evaluating how much the employee's actions contributed to the dismissal and whether a reduction is fair in all the circumstances.
The Tribunal's discretion is wide, but the starting point is usually to express any reduction as a percentage of the award. For example, if conduct is found to have contributed significantly, the Tribunal might reduce compensation by a substantial percentage.
Examples of Contributory Fault
Misconduct Leading to Dismissal
If an employee behaves in a way that justifies dismissal (for example, violent or grossly inappropriate conduct), but the employer fails to follow a fair procedure, the Tribunal may find the dismissal unfair. However, the Tribunal may still reduce the compensatory award because the employee's conduct contributed to the dismissal.
Conduct Not Justifying Dismissal
Not all blameworthy conduct necessarily leads to reduction. In Notaro Homes Ltd v Keirle and others [2024], the Employment Appeal Tribunal confirmed that even where contributory fault is found, a reduction is not automatic. The Tribunal may decide it is not just and equitable to reduce the award, for example when the conduct did not justify dismissal in the first place.
Relationship With Other Adjustments
Contributory fault is one of several factors that can affect the level of compensation awarded by a Tribunal. Others include:
- Polkey reductions: Compensation may be reduced if the Tribunal finds that the dismissal would have occurred even with a fair procedure.
- Failure to mitigate loss: If an employee fails to take reasonable steps to reduce their post‑dismissal losses (such as actively seeking new work), compensation may be reduced.
- ACAS Code adjustments: Failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures can reduce or increase awards by up to 25%.
Tribunals apply these adjustments sequentially and consider the overall fairness of reducing compensation.
Practical Considerations for Claimants
Evidence and Burden
The employer bears the burden of proving that the employee's conduct contributed to the dismissal. Clear evidence of misconduct or behaviour that materially contributed to the dismissal is essential.
Discretion in Reductions
Tribunals have discretion in choosing the level of reduction. A finding of contributory fault does not automatically mean a reduction will be applied, and where it is applied, the level chosen depends on the specific facts and context.
Common Questions
Can contributory fault reduce both basic and compensatory awards?
Yes. The Tribunal may reduce the basic award where it is just and equitable to do so based on pre‑dismissal conduct, and must consider reducing the compensatory award where the employee's conduct contributed to the dismissal.
Does contributory fault apply to all types of tribunal claims?
Contributory fault primarily applies in unfair dismissal claims. It may also apply in other situations where conduct has contributed to the outcome for which compensation is claimed, subject to statutory and case law context.
Is a 100% reduction possible?
In theory, yes. If the Tribunal considers that the employee's conduct fully contributed to the dismissal and it is just and equitable to make such a reduction, awards can be reduced by up to 100%. However, this is rare and context‑dependent.
Key Takeaways
Contributory fault is an established principle in employment law in England and Wales that allows Employment Tribunals to reduce compensation awards where an employee's conduct has contributed to their dismissal or claim. It is grounded in sections 122(2) and 123(6) of the Employment Rights Act 1996, requiring Tribunals to assess blameworthy conduct and then decide what proportion of the award to reduce on a just and equitable basis. The reduction can affect both basic and compensatory awards in unfair dismissal claims, and interacts with other adjustments such as Polkey reductions, mitigation, and ACAS Code considerations. Evidence and Tribunal discretion are key to how contributory fault operates in practice.
