When can a jersey employment tribunal reduce an unfair dismissal award to zero?

Employers frequently threaten to seek a reduction in unfair dismissal compensation during settlement negotiations, citing an employee's own conduct as justification. It is a common tactic and not always an empty one but in practice, significant reductions by the Employment Tribunal for employee conduct are relatively rare. Understanding precisely when and how the Tribunal exercises this discretion is important for both employees assessing the strength of their position and employers considering whether to litigate rather than settle.

The legal framework

The starting point is Article 77F of the Employment (Jersey) Law 2003, which gives the Tribunal explicit discretion to reduce a compensatory award. In summary, the Tribunal can decide that conduct of the complainant before dismissal (or, where the dismissal was with notice, before the notice was given) directly contributed to the dismissal in such a way that it would be just and equitable to reduce the award to the employee. 

Where a Tribunal finds that an employee's conduct - whether a single act or a pattern of behaviour - played a role in bringing about the dismissal, it may reduce the award to reflect that contribution. The reduction is proportionate: the greater the degree of culpability, the steeper the reduction. In the most serious cases, the Tribunal can reduce the award to nil, meaning the employee receives nothing despite the dismissal having been found unfair.

The conduct must be culpable

A clear principle the Tribunal will consider is whether the conduct in question is culpable or blameworthy. The Tribunal has been clear that conduct which is merely unfortunate, understandable in context, or the product of circumstances beyond the employee's control will not justify a reduction. An employee who raises a legitimate grievance, resists unreasonable instructions, or responds to workplace stress in a way that is regrettable but human should not find their award cut on that basis alone.

This distinction matters in practice. Employers sometimes point to an employee's manner during a disciplinary process or the raising of a grievance as evidence of conduct warranting a reduction. The Tribunal is unlikely to be impressed by such arguments. The focus must be on substantive conduct that genuinely contributed to the situation.

Conduct discovered after dismissal

One aspect of the Jersey law that frequently surprises employees is the rule on after-acquired conduct. The Tribunal can take into account conduct that only came to light after the dismissal took place - conduct the employer did not and could not have known about at the time. This significantly widens the pool of potentially relevant behaviour.

The practical implication is that an employer who discovers, for example, that a dismissed employee had been dishonest, was in breach of a restrictive covenant, or had concealed relevant information during their employment, may be able to rely on that discovery to argue for a reduction, even if the dismissal itself was for an entirely different reason and was found to be procedurally or substantively unfair.

How reductions are calculated

When a Tribunal decides that a reduction is appropriate, it must then determine the percentage by which the award should be reduced. There is no formula for this. The Tribunal exercises its judgment based on the facts, and it will consider the relative degree of fault on both sides: how blameworthy was the employee's conduct? How serious was the employer's procedural failing? Was the outcome one that would have been reached in any event?

Despite the breadth of the discretion available to the Tribunal, significant reductions are not the norm. A finding of 25% or 30% contribution is more common than a finding of 75% or 100%. 

Practical considerations for employees

If you are an employee who has been unfairly dismissed and your employer is suggesting your conduct warrants a reduction in any award, it is worth asking the following questions:

Was your conduct actually blameworthy?

Honest mistakes, reasonable disagreements, or responses to a difficult working environment are unlikely to support a reduction. The conduct must cross a threshold of genuine culpability.

Was there a causal link between the conduct and the dismissal?

If the conduct your employer is pointing to played no real role in the decision to dismiss you, it should carry little weight.

Is your employer relying on something discovered after the fact?

If so, how serious is it? After-acquired conduct can be relevant, but it must itself meet the threshold of culpability and must be something that, in all the circumstances, makes it just and equitable to reduce the award.

What was the employer's own conduct?

A significant procedural failure on the employer's part - a flawed investigation, denial of the right to be accompanied, a predetermined outcome - may outweigh relatively minor employee misconduct when the Tribunal weighs up the appropriate reduction.

Conclusion

The Tribunal's power to reduce an unfair dismissal award, including to zero, is real, but it is not a trump card for employers. Whilst after-acquired conduct can be taken into account, and a 100% reduction is theoretically available, the Tribunal will always be looking at the full picture on both sides. In reality - significant reductions of employee’s awards require significant justification and more often that not employers are attempting to rely on conduct that doesn’t meet that threshold.

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