Contributory fault

Even when a dismissal is unfair, your own blameworthy conduct before the dismissal can reduce your award. The tribunal calls this contributory fault — and it can cut both the basic award and the compensatory award by a significant percentage.

What is contributory fault in an employment tribunal?

Contributory fault is a statutory reduction applied to an unfair dismissal award where the tribunal finds that your own blameworthy or culpable conduct caused or contributed to the dismissal. The tribunal can reduce both the basic award (under ERA 1996 s.122(2)) and the compensatory award (under ERA 1996 s.123(6)) by whatever percentage it considers just and equitable — typically anywhere from 10% to 100%.

What is the legal test for contributory fault?

The test comes from Nelson v BBC (No 2) [1980] ICR 110. The tribunal must find: (1) that the claimant's conduct was blameworthy or culpable; (2) that it actually caused or contributed to the dismissal; and (3) that it is just and equitable to reduce the award by a given percentage. All three elements must be satisfied. A finding that the employer acted unreasonably in dismissing does not prevent a contributory fault reduction.

Can contributory fault reduce an award to zero?

Yes. A 100% contributory fault reduction is possible in principle and has been awarded in cases where the tribunal found the conduct fully justified dismissal even though some procedural step was missed. However, a 100% finding effectively means the dismissal was fair in substance, so tribunals exercise this power carefully. Where the basic award would otherwise be nil, the tribunal may still retain a small sum.

How does contributory fault interact with a Polkey reduction?

They are applied in sequence, not simultaneously. The tribunal first applies the Polkey reduction (the chance that the employer would have dismissed you fairly even with fair procedure), then applies contributory fault to the remaining figure. Both reductions can apply in the same case, and both are applied before the statutory cap on the compensatory award.

Does contributory fault apply to the basic award?

Yes, under ERA 1996 s.122(2), the basic award can be reduced where the tribunal finds it just and equitable to do so having regard to the claimant's conduct. The same finding of contributory conduct can reduce both the basic and compensatory awards, but the tribunal assesses each separately and the percentage may differ.

If I was found guilty of gross misconduct but the tribunal says the dismissal was unfair, can I still recover something?

Quite possibly. An unfair dismissal can exist alongside serious misconduct by the claimant — the unfairness may be purely procedural (the employer failed to investigate properly, for example). In that scenario the tribunal will likely apply a high contributory fault reduction — perhaps 50% to 80% — leaving a reduced but real award. The employer can also argue for a Polkey reduction on the basis it would have dismissed fairly had it followed a fair procedure.

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Last reviewed: June 2026

is a statutory reduction — under

ERA 1996 ss.122(2) and 123(6)

— applied to an unfair dismissal award where the tribunal finds that your own

blameworthy conduct caused or contributed

to the dismissal, allowing it to reduce your award by whatever percentage is just and equitable.

Where this comes from

— permits reduction of the basic award for blameworthy conduct.

— permits reduction of the compensatory award where the claimant caused or contributed to dismissal.

— established the three-stage test for contributory fault: blameworthy conduct, causation, just and equitable reduction.

The three-part test from

The tribunal applies a three-part test, confirmed in

1. Was the conduct blameworthy or culpable?

The conduct must be something that can fairly be described as blameworthy — not merely something the employer found unacceptable or commercially inconvenient. Genuinely innocent acts, errors of judgment, or situations beyond the employee

s control are generally not blameworthy.

2. Did the conduct cause or contribute to the dismissal?

There must be a causal link. If the employer was not aware of the conduct at the time of dismissal, or would have dismissed regardless, the link may be absent.

3. Is a reduction just and equitable?

Even if the first two elements are met, the tribunal retains discretion. It considers the overall justice of the case and the percentage of responsibility fairly attributable to the claimant.

How contributory fault and Polkey interact

These are two distinct reductions that can apply in the same case but are applied in sequence.

addresses procedural unfairness — it asks: would the employer have dismissed the claimant fairly even with a proper procedure? If so, the compensatory award is reduced by the percentage chance of that outcome.

then applies to the remaining figure — it asks: did the claimant

s own blameworthy conduct contribute to the dismissal? If so, the already-reduced figure is cut further.

Both reductions are applied

before the statutory cap

(£118,223 or 52 weeks

pay) is applied. This means the cap operates on the net figure after reductions.

employment tribunal finds he was unfairly dismissed, but that he had been repeatedly warned about timekeeping and failed to improve. The dismissal was procedurally unfair because no final warning was given. The tribunal also finds a 20% Polkey reduction (the employer would have dismissed him anyway within two months with proper procedure) and a 40% contributory fault reduction.

Initial compensatory award

Less 20% Polkey reduction

Less 40% contributory fault

Compensatory award after reductions

The basic award is reduced by 40% for the same contributory fault. James recovers something — but less than half his initial figure. Understanding this early helps set realistic expectations.

• Assuming dismissal for gross misconduct rules out a claim.
• Even where serious misconduct is found, procedural unfairness can still produce an award — reduced by contributory fault but not eliminated.
• Confusing Polkey with contributory fault.
• Polkey is about the procedure the employer used. Contributory fault is about what the claimant did. Both can apply; they operate on different logic and in sequence.
• Not engaging with the reduction argument in the claim.
• If you ignore evidence of your own conduct, the tribunal may find a higher reduction. Better to address it head-on with context and mitigation.
• Overlooking conduct the employer did not know about.
• Conduct unknown to the employer at the time of dismissal generally cannot ground a contributory fault reduction — it was not a cause of the dismissal.

Frequently asked questions

Sources & further reading

• — basic award reduction
• — compensatory award reduction

Concerned about a contributory fault reduction?

Start My Claim walks you through the Polkey and contributory fault considerations as part of building your case — so you can assess your realistic position before the hearing.

Last reviewed: June 2026.

Three-part Nelson v BBC test confirmed. Statutory provisions ERA 1996 ss.122(2) and 123(6) current.

This page is explanatory only and is not legal advice. Start My Claim is self-service software, not a law firm.