Fargro Ltd v Hide: EAT upholds appeal on contributory fault but orders review of unfair dismissal compensation

The Employment Appeal Tribunal has dismissed Fargro Ltd’s appeal over contributory fault in an unfair dismissal claim, while allowing part of an employee’s cross-appeal and setting aside a 66.66% reduction in compensation.

In Fargro Ltd v Hide [2026] EAT 162, Her Honour Judge Joffe held that the employment judge had not erred in declining to find contributory fault where the employer had provided insufficient evidence to support findings about the employee’s alleged misconduct. However, the tribunal had failed to address several material arguments about the fairness of the dismissal, requiring the assessment of compensation to be reconsidered.

Background to the dismissal

David Hide worked for Fargro as an integrated pest management specialist from January 2013 until his summary dismissal in January 2020.

The dispute followed allegations including bullying, failure to follow management instructions, inappropriate use of work devices and time, and unacceptable conduct towards management. An external employment consultancy investigated the allegations and conducted the disciplinary and appeal hearings.

The consultant conducting the disciplinary hearing did not uphold the bullying allegation but recommended dismissal on the remaining charges. Fargro’s managing director, Mr Hopkins, accepted that recommendation. He also rejected Hide’s appeal after receiving a further consultant’s report, without meeting Hide personally at either stage.

The employment tribunal found that the dismissal was substantively within the range of reasonable responses but procedurally unfair. It identified the managing director’s involvement in both the dismissal and appeal decisions, together with the failure to address all the appeal grounds, as sources of unfairness.

The tribunal applied a 66.66% reduction to compensation under the Polkey principle, reflecting the likelihood that Hide would have been dismissed in any event. It made no reduction for contributory fault.

Employer’s appeal dismissed

Fargro argued that the employment judge had failed to assess the available evidence and make findings that could support a reduction for contributory fault under section 123(6) of the Employment Rights Act 1996.

Judge Joffe accepted that tribunals must consider contributory fault where the facts and evidence make such a finding appropriate. They may also rely on documentary or hearsay evidence, provided they assess its relevance and weight.

However, the evidence concerning Hide’s alleged misconduct was limited. Fargro had called none of the consultants involved in the disciplinary process, there was little contemporaneous documentation, and Hide had been cross-examined about his culpability only in relation to an incident involving a screensaver.

The tribunal had found that Hide refused a management instruction to remove the screensaver, but the judge was unable to identify further facts from which the necessary level of culpability could be assessed. Fargro had also failed to identify specific evidence in its reconsideration application that should have led to different findings.

The EAT held that the employment judge was not required to construct a case of contributory fault that the employer had not properly advanced. The appeal was dismissed.

Cross-appeal and compensation

The EAT partly allowed Hide’s cross-appeal, finding that the employment judge had failed to consider two material matters: the fact that Hide had not been shown documents about which he was questioned during the investigation, and the alleged failure to consider mitigation when deciding whether dismissal was an appropriate sanction.

The judge also failed to address whether Hide had been given a proper opportunity to explain himself to the managing director before the dismissal decision. Although the absence of a direct meeting does not automatically make a dismissal unfair, it raised a material question about whether Hide could put forward his position, including any mitigation, to the actual decision-maker.

The EAT rejected the argument that the employment judge’s findings were perverse. The evidence was limited, but there was material capable of supporting the conclusion that Mr Hopkins had made the decisions.

However, the 66.66% Polkey reduction could not stand without consideration of the further potential grounds of unfairness. The EAT set aside that assessment, holding that it would depend on whether additional findings of unfairness were made.

The case will be remitted to an employment tribunal, with the parties invited to make submissions on whether it should return to the original employment judge or be heard by a new tribunal.