EAT Unfair Dismissal: Reasonableness of Dismissal and Compensation
Employment Tribunal correctly applied the objective test of the band of reasonable responses to the facts it found. Appeal against liability dismissed.
On the basic award of compensation, it did not err when it did not reduce the award by 50% as it had for contributory fault in respect of the compensatory award. It was aware of the different statutory provisions. Employment Rights Act 1996 s 122(2) is not regulated by loss as s 123(1) is but reflects redundancy pay. It was open to the Employment Tribunal to exercise its discretion not to reduce the award in the light of the possibility of redundancy had the dismissal not occurred. There is no restriction on what factors the Employment Tribunal hold to be a just and equitable reason for refusing to reduce. Impending redundancy at the time of the unfair dismissal canot be said to be an error of law.
The Employment Tribunal did not err in holding that had a fair procedure been adopted, as the employer accepted it was not, the employee would not have been dismissed, and there was an apt direct comparator for this purpose.
The Employment Tribunal erred in failing to apply its findings on the prospect of redundancy when considering Polkey v A E Dayton Services Ltd  IRLR 503. This aspect is remitted to the Employment Tribunal and it will be at liberty to reconsider its finding as to the prospect of the employee obtaining new employment.
McMullen QC J
 UKEAT 0447 – 05 – 0501
Updated: 05 July 2022; Ref: scu.240204