Does an employment tribunal have to find an employee 'culpable' when deciding if a dismissal is for conduct?
No, held the EAT in JP Morgan v Ktorza.
The Claimant worked on the Respondent bank's foreign exchange desk. He was dismissed for conduct for a practice called 'short-filling' around trades, which the Respondent maintained he had been instructed not to do. The Claimant maintained he had been unaware of that instruction. In finding the dismissal unfair, the employment tribunal erred after considering the reason for dismissal, and deciding that the Claimant's conduct was not, in the employment tribunal's view, culpable, rather than looking at the matter from the employer's point of view.
In conduct dismissals, the requirement in ss. 98(1) & (2) ERA 1996 to establish the reason for dismissal does not require an employer to show that the conduct in question is actually culpable. The issue of culpability and fairness comes in at the next stage in s.98(4), when determining whether the employer acted reasonably in treating the conduct as sufficient reason for dismissal.
Thanks to Ed McFarlane of Deminos HR for preparing this case summary.