EAT Unfair Dismissal : Polkey Deduction – Reinstatement/re-engagement – The Employment Tribunal found that an employee bus driver, dismissed procedurally unfairly for capability reasons (the effects of an accident), would have been 60% likely to have been fairly dismissed given time and proper procedures. The employee having fully recovered as at the date of hearing, it ordered reinstatement but reduced the monetary compensation payable between dismissal and reinstatement by 60%. The parties agreed it was wrong to make any deduction, so subject to the argument that the discretion to order reinstatement was wrongly exercised for failure to take account of the ‘Polkey’ determination, a cross-appeal succeeded. Held ‘Polkey’ related to compensation, not to the statutorily prior inquiry into whether reinstatement should be ordered, and the employer failed to show the discretion was exercised on any other wrong basis (having gained an alternative job did not disqualify an ET from ordering reinstatement), or was wholly unreasonable. Appeal dismissed: cross-appeal allowed.
Judges:
Langstaff P J
Citations:
[2012] UKEAT 0272 – 12 – 2011)
Links:
Jurisdiction:
England and Wales
Employment
Updated: 12 November 2022; Ref: scu.468955