EAT UNFAIR DISMISSAL – Polkey deduction
The Claimant was dismissed by the Respondent and brought a claim for unfair dismissal. The Respondent accepted that the dismissal had been unfair because it had not followed its capability procedure. On the issue of compensation, it contended that – even if it had applied its capability procedure – the Claimant would have, in any event, been fairly dismissed for ‘capability’ of some other ‘substantial reason’.
After a contested hearing, the Employment Tribunal found that there was an 85% prospect that the Claimant would have been fairly dismissed no later than three months after the actual date of dismissal. Compensation was correspondingly reduced.
Additionally, an invitation to include – as an aspect of compensation – a sum that might have been paid by way of bonus, if the Claimant had remained in employment, was refused. That was on the basis that the Claimant would have had his employment fairly terminated before the bonus date and/or that it would not have been paid to him if he had been employed simply in the sense of working-out notice of termination of the employment given by his employer
The Claimant brought appeals against both the original decision of the Employment Tribunal and against its refusal of a reconsideration application relating to the above points.
APPEALS DISMISSED
The Tribunal had not erred in law in respect of either point. It had been entitled to entertain, and determine, the invitation to make a Polkey deduction and had made no error in its reasoning. The decision on the bonus issue was unimpeachable.
Luba QC J
[2016] UKEAT 0011 – 15 – 1403
Bailii
England and Wales
Employment
Updated: 12 January 2022; Ref: scu.561007
