The respondent had been dismissed for misconduct on the morning of the day on which he was dismissed. There had been previous misbehaviour but the industrial tribunal held that the case had to be determined on the basis of what had happened on that morning and that the employers had acted reasonably and had fairly dismissed the employee even though they had not warned him about his previous misbehaviour or given him an opportunity to explain his conduct on that morning. It decided that even had there been an investigation the employee would still have been dismissed because on the balance of probabilities the employers would not have accepted his explanation and the dismissal was therefore fair.
Held: Even though in the then context the employer’s decision to dsmiss the employee was not reasonable because of a failure to follow a fair procedure, the dismissal may still be fair if, on the facts proved before the industrial tribunal, the industrial tribunal comes to the conclusion that the employer could reasonably have decided to dismiss if he had followed a fair procedure.
Judges:
Slynn J
Citations:
[1979] ICR 347, [1979] IRLR 94
Cited by:
Criticised – Sillifant v Powell Duffryn Timber Ltd CA 1983
The court explained the principle on ‘British Labour Pump’ as follows: ‘even if, judged in the light of the circumstances known at the time of dismissal, the employer’s decision was not reasonable because of some failure to follow a fair procedure . .
Cited – Polkey v A E Dayton Services Limited CA 1986
The employee had been made redundant with no attempt at consultation and in breach of procedures.
Held: His claim of unfair dismissal was dismissed because even if the procedures had been followed, the result would have been the same. What . .
Wrongly decided – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
Cited – Lambe v 186K Ltd CA 29-Jul-2004
The claimant had been dismissed for redundancy, but the company had been found not to have consulted him properly, and he had therefore been unfairly dismissed. The tribunal had then found that even if consulted the result would not have been . .
Cited – A v B EAT 14-Nov-2002
The claimant worked as a residential social worker. Allegations were made against him of inappropriate behaviour with a child. The girl’s allegations varied. A criminal investigation took place but insufficient evidence was found. The investigation . .
Mentioned – O’Donoghue v Redcar and Cleveland Borough Council CA 17-May-2001
The Tribunal had been entitled to find on the evidence that an employee unfairly dismissed by reason of sex would have been fairly dismissed for misconduct six months later in any event because of her antagonistic and intransigent attitude. The . .
Mentioned – Duffy v Yeomans and Partners Ltd EAT 7-Apr-1993
. .
Criticised but binding – W and J Wass Ltd v Binns CA 1982
. .
Cited – Bolton Metropolitan Borough Council v Scranage EAT 8-May-2003
EAT Unfair Dismissal – Reason for dismissal
EAT Unfair Dismissal – Reason for dismissal including substantial other reason. . .
Cited – Baker v Fleet Car Contracts Ltd EAT 23-Jul-1997
. .
Mentioned – Layton v Blackpool Football Club Ltd EAT 6-Dec-1999
EAT Redundancy – Fairness . .
Mentioned – Red Bank Manufacturing Co Ltd v Meadows EAT 1992
A party wishing to complain about a member of the employment tribunal should make his complaint to that tribunal rather than at the EAT. The Polkey principle must be considered by the Tribunal in assessing compensation for unfair dismissal even . .
Mentioned – Kelly-Madden v Manor Surgery EAT 19-Oct-2006
EAT The employee was the practice manager at a general medical practice. She was dismissed for dishonesty, taking unauthorised pay for overtime hours. She alleged that she had been told by the former practice . .
Mentioned – Software 2000 Ltd v Andrews etc EAT 17-Jan-2007
EAT Four employees successfully established before the Employment Tribunal that they had been unfairly dismissed for redundancy. The Tribunal found that there had been procedural defects. In particular the . .
Cited – Rolls Royce Motor Cars Ltd v Price and others EAT 2-Feb-1993
The company appealed against findings of unfair dismissal of the claimants, saying that they had been made redundant. The claimants said that the company had broken the agreed procedure, and that the dismissals were automatically unfair.
Held: . .
Effetively re-instated – Salford Royal NHS Foundation Trust v Roldan CA 13-May-2010
The employee appealed against the reversal by the EAT of her successful claim for unfair dismissal. She had been dismissed for alleged gross misconduct in disrespectful treatment of a patient. She said that investigation had been procedurally . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 30 April 2022; Ref: scu.200299