UNFAIR DISMISSAL
The claimant was dismissed for misconduct following an earlier final written warning for a different type of misconduct. While she succeeded in an unfair dismissal claim before the Tribunal on the basis of procedural unfairness, her compensatory award was reduced to nil on the basis of a Polkey assessment that, had a fair procedure been followed there was a 100 per cent chance that she would have been dismissed anyway.
On appeal the claimant contended that the Tribunal had erred in concluding that the earlier final written warning was valid and so the Polkey deduction could not stand.
Held:
1) Following Wincanton Group plc v Stone and Another UKEAT/0011/12/LA, the overriding issue was whether, absent oblique motive or bad faith, there had been prima facie ground for issuing the warning
2) It is not part of the general function of the appellate tribunal to re-open the issue of whether the final warning should have been issued or not – Bandara v BBC UKEAT/0335/15/JOJ
3) That there was a sufficient basis in the evidence for the Tribunal’s findings and conclusion on the issue of the earlier written warning and it was not for the appellate tribunal to interfere even if it took a different view of the facts
Appeal dismissed.
Citations:
[2018] UKEAT 0019 – 17 – 1109
Links:
Jurisdiction:
England and Wales
Employment
Updated: 04 May 2022; Ref: scu.634372