EAT Unfair Dismissal: Polkey Deduction – PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
PRACTICE AND PROCEDURE – New evidence on appeal
Having upheld the Claimant’s claims of unfair dismissal and disability discrimination, the Employment Tribunal concluded that no compensatory award for loss of earnings on a Polkey basis (the Claimant would have been fairly dismissed in any event, without suffering any loss of earnings). The issue on appeal was whether the Employment Tribunal reached that conclusion on the basis of inaccurate medical evidence and/or an erroneous assumption as to when the Claimant had made an application for ill-health retirement.
Held: dismissing the appeal, initially it had seemed that the Claimant’s case on the medical evidence was a ‘new evidence’ point. If so, having seen the material that had been before the Employment Tribunal, the point did not meet the tests laid down in Ladd v Marshall [1954] 1 WLR 1489 CA. The substance of the point was before the Employment Tribunal and the additional material could have made no difference to its conclusions. To the extent the Claimant’s argument was now that the Employment Tribunal should not have accepted the evidence of the Respondent’s medical expert, that was not how her case was put below and it could not succeed: the expertise of the Respondent’s witness could not be challenged and she had expressed a reasoned opinion which the Employment Tribunal had been entitled to accept. The Employment Tribunal’s conclusion was not perverse and there was no proper basis on which the Claimant could challenge it.
As for the date of the Claimant’s ill-health retirement application, even if the Employment Tribunal erroneously characterised an expression of interest as an application and had wrongly stated that this had been before the hearing of the appeal rather than the communication of the outcome, none of that vitiated its conclusion. This was simply one of many factors the Employment Tribunal took into account in concluding that the Claimant would not have returned to work and the chronological error did not undermine the substance: the expression of interest in ill-health early retirement before knowing the outcome of the appeal was a relevant part of the evidence to which the Employment Tribunal was entitled to make reference.
Eady QC HHJ
[2015] UKEAT 0361 – 14 – 1603
Bailii
England and Wales
Employment
Updated: 30 December 2021; Ref: scu.546504