There’s nothing we hate more than being the bearers of bad news, especially when it comes to telling employers who’ve dismissed blatantly guilty employees that they’re exposed to potentially valid unfair dismissal claims. However, we often are and so it makes sense for us to set out the main reasons why in the hope that we don’t have to hold the receiver away from our ears for fear of deafness as much in future. We’ll do this in a series of blog posts over the course of the next couple of weeks, covering a different reason in each post. Of course, if you’re an employer and would like to discuss any of the issues touched on in these posts, please contact one of our HR consultants in confidence and without delay for some initial advice free of charge and without obligation.

In this post we look at the importance of considering mitigating factors when deciding on the appropriate disciplinary sanction.

Once it has been concluded that the employee is guilty of the alleged misconduct, the employer must then turn its mind to any factors that might explain or defend his/her behavior, or that may have contributed to him/her acting in that manner. The employer would then need to consider whether any such mitigating factors might warrant a lesser sanction being imposed in the circumstances.

In Department for Work and Pensions v Coulson (UKETA/0572/12/LA), the respondent’s HR department had informed the claimant that dismissal was the obvious sanction [. . .] unless [they] could find some mitigation that could lower it to a final written warning. That mitigation would have to be such that the person was sufficiently mentally ill so as to not know what they were doing, but normally dismissal would be the expectation.”.

The EAT, in discussing the Employment Tribunal’s decision, stated in respect of this passage that it was:



“…capable, particularly where a tribunal has seen and evaluated the witnesses and considered the context in which the evidence is given, of supporting the conclusions of fact to which the tribunal came, which cannot individually be said to be perverse, that the dismissing officer and the appeals officer both thought here that unless the mitigation amounted to the Claimant not knowing what she was doing at the time she committed the acts, it could not affect the sanction of dismissal. It was open to the tribunal to conclude that the mitigation, though reported in the documentation and referred to, was thus not considered in any real sense except to ask if it amounted to meeting that hurdle. It did not and so it was discarded. It is not considering mitigation to ignore its relevance in any other context.”


This comment emphasises the importance of employers applying their minds to this issue before deciding on disciplinary sanctions. Some potential mitigating factors to keep an eye out for include:



  • When explaining away his/her behaviour, has the employee relied upon any current physical or mental illness? A common example would be stress. In such circumstances, it would be advisable for an employer to look at the matter with a degree of sensitivity and consider obtaining medical evidence.


  • Does the employee have a disability to which his/her conduct could have been, on whole or in part, attributed to? Let’s take the slightly extreme example of an employee who sporadically falls asleep at his/her desk who, it transpires has narcolepsy. Are we going to treat him/her the same as a person who does not share this characteristic?


  • Is the employee currently going through any personal issues that could have contributed to his/her conduct such as bereavement or divorce? In this case, it would be appropriate to consider how long the problem is likely to last and whether it should be therefore considered a mitigating factor.


  • Employers should balance matters such as length of service against the seriousness of the misconduct. If, for example, it is an act which could constitute gross misconduct but is perhaps borderline and the employee in question has long service and a previously unblemished disciplinary record then action short of dismissal might be more appropriate.



Finally, it should be noted that having considered any mitigating factors, the test in unfair dismissal cases is whether dismissal falls within the “band of reasonable responses”. Therefore, the fact that a lesser sanction could be considered doesn’t mean that dismissal will be unfair provided that dismissal remains one of the reasonable sanctions.

Chris Nagel, Director / Head of HR at Employee Management Limited, comments…



“Something not specifically mentioned above is that an employee’s apology can go a long way, reason being that a failure to show any remorse suggests that he or she doesn’t acknowledge / appreciate that they’ve done wrong. Where this is the case, it’s reasonable to assume that further misconduct is more likely. As such, an apology can often be the difference between dismissal and action short of it.”



Look out for our next and final post, which will deal with the importance of adjournments.