Bloody-Minded: Anger and the Reduction of an Award

Mr Nelson worked for the BBC in the Caribbean. When the Corporation wound down the service in 1974 it offered him other work, and he refused every version of it. The Court of Appeal held the redundancy dismissal unfair, because there was work he could have done, then cut his compensation to nothing: his conduct had been perverse, or foolish, or, in Brandon LJ’s word, bloody minded.

Nelson v British Broadcasting Corporation (No 2) [1980] ICR 110 supplies the three-stage test for contributory fault now applied under section 123(6) of the Employment Rights Act 1996. The blameworthy conduct it found was Mr Nelson’s refusal to be reasonable about a wrong the court accepted he had suffered.

Five provisions, rarely read together, reduce or refuse a remedy by reference to what a claimant did about the wrong or why the claimant spoke: sections 122(2), 123(6), 123(6A) and 116(1)(c) of the 1996 Act, and section 27(3) of the Equality Act 2010. They are short enough to set out.

Employment Rights Act 1996, s.122(2)Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.

Employment Rights Act 1996, s.123(6)Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.

Employment Rights Act 1996, s.123(6A)Where—
(a) the reason (or principal reason) for the dismissal is that the complainant made a protected disclosure, and
(b) it appears to the tribunal that the disclosure was not made in good faith,
the tribunal may, if it considers it just and equitable in all the circumstances to do so, reduce any award it makes to the complainant by no more than 25%.

Employment Rights Act 1996, s.116(1)In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account—
(a) whether the complainant wishes to be reinstated,
(b) whether it is practicable for the employer to comply with an order for reinstatement, and
(c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement.

Equality Act 2010, s.27(3)Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

The basic award and the compensatory award

The two reductions in section 122(2) and section 123(6) are not the same test, and conflating them is the commonest error in a remedies hearing. Section 123(6) requires the conduct to have caused or contributed to the dismissal. Section 122(2) does not: it asks only whether conduct before the dismissal makes it just and equitable to reduce the basic award. Conduct the employer knew nothing of at the time can reduce the basic award while leaving the compensatory award untouched, because it cannot have contributed to a decision taken in ignorance of it. The proportions need not match, and a tribunal that applies one percentage to both without saying why has not done the exercise.

Subsection (6) and subsection (6A)

Section 123(6) is the familiar one. Where the tribunal finds that the dismissal was “to any extent caused or contributed to by any action of the complainant”, it shall reduce the compensatory award by such proportion as it considers just and equitable. The conduct must be culpable or blameworthy, meaning perverse, unreasonable or foolish, whether or not it also breached the contract; it must have caused or contributed to the dismissal; and the reduction must be just and equitable. There is no floor: Mr Nelson recovered nothing.

Directly beneath it sits section 123(6A), inserted by section 18(4) of the Enterprise and Regulatory Reform Act 2013 with effect from 25 June 2013. Where the reason for dismissal was a protected disclosure and it appears to the tribunal that the disclosure “was not made in good faith”, the tribunal may reduce any award by no more than 25%. Section 49(6A) does the same for detriment claims.

The same section of the 2013 Act put something else in its place. Good faith left the gateway; the requirement that the worker reasonably believe the disclosure to be in the public interest arrived there. It is the gateway that is now litigated: Chesterton Global Ltd v Nurmohamed [2017] EWCA Civ 979 holds that a disclosure serving a group of workers can satisfy it, so the test screens out the purely private grievance rather than the ill-tempered discloser.

That amendment is usually described as the removal of the good faith requirement, which understates it. Before 2013, good faith was a condition of protection. In Street v Derbyshire Unemployed Workers' Centre [2004] EWCA Civ 964 the Court of Appeal held that a disclosure made for a dominant or predominant ulterior purpose was not made in good faith at all, and Mrs Street’s purpose was personal antagonism towards a colleague. She lost outright. Parliament did not stop caring about her motive in 2013. It moved the motive out of the gateway and into the remedy, where it now yields a reduction of up to a quarter rather than the loss of the claim.

So the two adjacent subsections divide the ground between them. Subsection (6) asks what the claimant did. Subsection (6A) asks why the claimant spoke. The first has no cap and reached zero in Nelson; the second stops at 25%.

Bad faith under the Equality Act 2010

Victimisation runs differently. Section 27(3) of the Equality Act 2010 provides that giving false evidence or information, or making a false allegation, “is not a protected act if the evidence or information is given, or the allegation is made, in bad faith”. No discount, and no discretion: the act simply falls outside section 27(2), and the claim fails at the first element.

The reach of that is narrower than respondents tend to plead. Section 27(3) bites only where the evidence, information or allegation is false. A true allegation made in a rage, or made for reasons that have little to do with equality and a great deal to do with a grudge, remains a protected act. Bad faith on its own does nothing.

At the other end of a claim the same pattern holds. In Omilaju v Waltham Forest LBC [2004] EWCA Civ 1493 the Court of Appeal held that a last straw need not itself be a breach of contract, but it must contribute something to the breach of trust and confidence, and an entirely innocuous act cannot qualify however it struck the employee. The employee’s sense that this was the final blow is not the fact that decides it.

The other side of the ledger

All of that runs one way. Set against it is the rule that fixes what unfair dismissal compensation is for. In Dunnachie v Kingston upon Hull City Council [2004] UKHL 36 the House of Lords held that the compensatory award under section 123(1) is confined to financial loss: injury to feelings is not recoverable, whatever the manner of the dismissal. So in this jurisdiction the claimant’s feelings cannot raise the award at all, while the claimant’s conduct can extinguish it.

The discrimination jurisdiction inverts it. Compensation under section 124 of the Equality Act 2010 includes injury to feelings, assessed on the Vento bands, and the measure is the effect of the treatment on this claimant rather than the gravity of what the employer did: Cadogan Hotel Partners Ltd v Ozog UKEAT/0001/14, applied in Komeng v Creative Support Ltd UKEAT/0275/18. Mr Komeng had been discriminated against over several years and recovered near the top of the lower band, because he had shown what HHJ Stacey recorded as remarkable resilience. Two claimants, identical treatment, different awards: the difference is how much it hurt.

Aggravated damages sit above that. Commissioner of Police of the Metropolis v Shaw [2012] ICR 464 identifies three categories capable of grounding an award: the manner in which the wrong was committed, the motive behind it, and the respondent’s subsequent conduct. But Underhill P was explicit that such an award is compensatory and not punitive, and HM Land Registry v McGlue EAT 0435/11 requires the tribunal to identify the aggravating features and to avoid counting the same hurt twice.

Which is the distinction the philosophy is about, arrived at by a different route. The law will pay for the additional injury that the manner of a wrong inflicted on the person wronged. It will not pay anything for the wish that the wrongdoer suffer. An aggravated award that crossed that line would be punitive and would be reduced on appeal.

Postscript, 18 September 2026. The EAT has since done so. In Khans Solicitors v Kaiser [2026] EAT 137 HHJ Tayler remitted an award of £5,000 whose “most serious aggravating factor” was that the respondent was a firm of solicitors, because that reason sounded punitive and the tribunal had made no finding of increased injury: see Making It Worse.

Whether the statute is penalising anger

Is the statute penalising anger, or merely declining to reward it?

A deduction under section 123(6) requires culpable or blameworthy conduct on the claimant’s part, and the tribunal is not asked whether the anger was warranted before it makes one. Mr Nelson had been unfairly dismissed. The Corporation could have found him work and did not. His award still went to nothing, on the strength of how he had behaved about a wrong the court accepted he had suffered.

Reinstatement

Section 112(2) obliges the tribunal, on every successful unfair dismissal claim, to explain what orders may be made under section 113 and to ask the claimant whether they want one. Reinstatement is the first remedy the statute contemplates, and compensation under section 112(4) is what happens when no order is made.

Section 116(1) then sets out what the tribunal takes into account: whether the claimant wishes to be reinstated, whether reinstatement is practicable for the employer, and, where the claimant “caused or contributed to some extent to the dismissal”, whether it would be just to order it. Contributory conduct appears here for a second time, no longer reducing a sum but barring a return. Section 116(3) repeats the structure for re-engagement.

Kelly v PGA European Tour [2021] EWCA Civ 559 fixes the meaning of practicable. It requires more than possibility: the order must be capable of being carried into effect with success. Re-engagement is not practicable where the employer genuinely and rationally believes that the employee cannot perform the role, or that the employee’s conduct has broken down trust and confidence. The tribunal tests the employer’s view for genuineness and rational foundation; an asserted breakdown, without more, does not pass.

The statute therefore makes return the primary remedy, obliges the tribunal to offer it to every claimant who wins, and then treats the collapse of the relationship as the reason to refuse it. Reinstatement and re-engagement are ordered in a very small fraction of successful claims, and have been for as long as anyone has counted: Dickens, Hart, Jones and Weekes were already calling re-employment “the lost remedy” in the Industrial Law Journal in 1981.

Nussbaum’s distinction, in statutory form

Martha Nussbaum’s Anger and Forgiveness (2016), delivered as the John Locke Lectures, takes up the classical account of anger and refuses half of it. Aristotle’s orgê in the Rhetoric is a painful response to a damage the angry person believes was wrongfully inflicted on himself or on those he cares about, carrying with it a pleasant hope of payback. Nussbaum keeps the judgment and discards the hope.

Neither statute asks whether the outrage was justified. The liability judgment settled that; asking again adds nothing.

The declaration, the part usually left out of a remedies submission, corresponds exactly to what Nussbaum says survives. It marks that the wrong was done and pays nothing for it. Under the Equality Act 2010 the tribunal may make one; under section 49(1)(a) of the 1996 Act, on a detriment claim, it must. For unfair dismissal there is no declaratory remedy at all, which is the same omission Dunnachie makes on the compensation side: that jurisdiction deals in money and in the job, and has no instrument for saying only that this should not have happened.

What the statute used to say

There was, until recently, a remedy whose entire content was Transition-Anger. Section 124(2)(c) of the Equality Act 2010 empowers a tribunal to make an appropriate recommendation, and as enacted section 124(3) let it recommend steps to obviate or reduce the adverse effect of the matter complained of on the complainant or on any other person. A tribunal that had found discrimination could direct that something be changed so that it did not happen to the next person.

Section 2 of the Deregulation Act 2015 inserted the words “on the complainant” into section 124(3) and struck out the two paragraphs beneath it. Since 1 October 2015 a recommendation may only reduce the adverse effect on the claimant who brought the claim. The Employment Rights Act has never had the power at all.

So the demand that survives Nussbaum's argument — how outrageous, this should not happen again — was narrowed by Parliament to how outrageous, this should not happen again to you. That is the status-facing version of the demand, the one she says is worth least. The forward-facing one, which asked nothing for the claimant and everything for everyone after her, is the limb that went. A sort of moral neutering, carried out in a deregulation statute.

What the 2025 Act does, and does not, change

None of the five provisions is touched by the Employment Rights Act 2025. Sections 122(2), 123(6), 123(6A) and 116(1)(c) of the 1996 Act stand as they were; so does section 27(3) of the Equality Act 2010. Neither does the 2025 Act restore the recommendation limb the Deregulation Act removed, which is worth saying plainly: Parliament had an entire employment rights statute open and left that paragraph where it found it.

What changes is what the untouched provisions are worth. From 1 January 2027 section 25 of the 2025 Act cuts the unfair dismissal qualifying period from two years to six months and removes the cap on the compensatory award altogether. A contributory fault reduction will therefore bite on far more claims, and on sums with no ceiling above them. Mr Nelson lost a capped award. The next claimant to be found bloody minded will lose an uncapped one: the percentage a tribunal picks under section 123(6) becomes the most valuable number in the case.

If any part of this scheme deserves to be restored, it is the paragraph that faced forward.

The law has not adopted her ethics. Nussbaum is describing what it is rational for a wronged person to feel; the 1996 Act fixes what that person is paid, through a tribunal that was not the wrongdoer and lost nothing by the wrong. A claimant who arrives at Transition-Anger unaided will fare better under section 123(6) than one who does not. Two projects reach the same place from opposite directions; neither has borrowed from the other.

Practical points

For claimants, the two reductions are not equivalent and respondents will run both. The good faith reduction is capped at 25% and requires a finding about the purpose of the disclosure. Contributory fault has no cap. Where a disclosure is entangled with a personal dispute, the second is the greater exposure.

Street turns on dominant or predominant purpose, not on the presence of ill-feeling. A claimant who is furious and right keeps the protection. Plead the purpose, and be specific about it, because the finding the tribunal has to make is about what the disclosure was for.

Under section 27(3), check whether the allegation was in fact false before conceding anything. Respondents routinely plead bad faith as though it were freestanding.

On remedy, raise section 116 properly or lose it. Where contribution is alleged, section 116(1)(c) is live and belongs in the claimant’s remedy submissions rather than in the respondent’s. And Kelly cuts both ways: an employer resisting reinstatement has to produce the belief and show it is genuine and rational, which is a heavier task than the sentence usually offered at the end of a remedies hearing.

Ask for the declaration. It is free, it is refused for no good reason, and for a client whose case was always that the thing happened and was wrong it is the remedy that says so on the face of the judgment. On a detriment claim under section 48 it is not discretionary: section 49(1)(a) says the tribunal shall make one. Ask for an appropriate recommendation too, remembering that since October 2015 it can only address the effect on your own client.

Plead the basic award reduction separately from the compensatory one. They are different tests, and a respondent seeking one percentage across both should be made to justify the causal link that section 123(6) requires and section 122(2) does not.

Where the claim is put in both jurisdictions, remember which one prices feelings. Dunnachie shuts injury to feelings out of the unfair dismissal award altogether, so the evidence of distress belongs to the discrimination claim. Under Komeng that evidence is the award: a claimant who copes well and says so will be paid less than one who does not, which is an uncomfortable thing to know and a necessary thing to prepare.

Mr Nelson was unfairly dismissed and recovered nothing, on the strength of how he took it. Section 123(6) has not been amended since.

Table of Authorities

Secondary sources

• Martha C. Nussbaum, Anger and Forgiveness: Resentment, Generosity, Justice (Oxford University Press, 2016), delivered as the John Locke Lectures at Oxford in 2014. The critique of the payback wish, and Transition-Anger, are hers.
• Aristotle, Rhetoric II.2, for the account of orgê that she takes up and half dismantles.
• Linda Dickens, Michael Hart, Moira Jones and Brian Weekes, ‘Re-employment of Unfairly Dismissed Workers: The Lost Remedy’ (1981) 10 Industrial Law Journal 160.

Alex acts in disputes like this one for claimants and respondents, instructed by solicitors or by direct access. How to instruct him or email the clerks.