The Claimant was unfairly dismissed for redundancy. The Tribunal failed to order re-engagement after accepting the Respondent’s evidence that the Claimant was not the best person for an available job which he contented he could do. The Tribunal thought there was insufficient information to identify a job that he could do. The Tribunal assessed compensation by deducting gross mitigation earnings from the net sum that would have been earned had he not been dismissed and applied a 50 % Polkey reduction. The Claimant appealed.
Held, allowing the appeal, that the Tribunal failed to apply the provisions of s.116(3) of the Employment Rights Acts 1996, which required the Tribunal to take into account whether it was practicable for the Respondent to comply with the Order for re-engagement. In circumstances where there was some evidence that the Claimant could do the available role, albeit with some training, the fact that he may not have been, in the Respondent’s view, the best candidate for the role did not mean that it was not practicable for the Respondent to comply with the Order. By deducting gross mitigation earnings from net sum that would have been earned, the Tribunal assessed compensation on a basis that did not reflect the loss sustained, as required by section123 of the 1996 Act the Polkey deduction of 50 %, which was based merely on the fact on the fact that only two remained in the pool at the time the decision to dismiss, was taken, was inconsistent with the Tribunal’s clear finding that on an objective basis, the Claimant was the better candidate.
The matter would be remitted to the same Tribunal.
Citations:
[2020] UKEAT 0148 – 19 – 2801
Links:
Jurisdiction:
England and Wales
Employment
Updated: 25 November 2022; Ref: scu.650589
