EAT UNFAIR DISMISSAL/POLKEY DEDUCTION/HUMAN RIGHTS
A school mid-day dinner assistant told a child’s parents that the child had been tied to a railing in the playground and whipped across the legs by other pupils. She was suspended, She complained to the press about the suspension and in doing so confirmed what she had told the parents. Her claim that she was dismissed for making a disclosure in the public interest was rejected, but her dismissal was held unfair on procedural grounds. At the subsequent remedy hearing, the Tribunal concluded that she would have been dismissed fairly after 2 months if proper procedure had been followed, and compensation for that 2 months should be reduced by 80% on account of her contributory conduct, and awarded andpound;49.99.
An appeal arguing that the ET took an erroneous approach to making a Polkey deduction was upheld; as was the ground that the ET approached central issues of confidentiality by applying its own paraphrase of the qualifications to Article 10 of the ECHR (freedom of speech) rather than the legislative words (it should have adopted a structured approach to applying those actual words). That might also have affected the assessment of contributory fault, and it was in event unclear precisely what was said to be confidential and to whom, the disclosure of which was the basis for dismissal. Since the claimant’s argument that the ‘Polkey deduction’ should be nil since any dismissal would inevitably be unfair because a primary school had no right to require confidentiality from its staff was rejected, and the Appeal Tribunal in no position to decide the matter for itself, it was remitted to a Tribunal for re-determination of remedy (submissions being invited as to the identity of that tribunal).
Judges:
Langstaff P J
Citations:
[2012] UKEAT 0237 – 12 – 2901
Links:
Statutes:
European Convention on Human Rights 10
Jurisdiction:
England and Wales
Employment
Updated: 13 November 2022; Ref: scu.470763
