EAT UNFAIR DISMISSAL – Polkey deduction
Unfair Dismissal – Conduct
Dismissal – Polkey
The Respondent’s reason for the dismissal was based on three separate incidents of misconduct.
On the first, the Respondent used the label of ‘physical assault’ to characterise the charge against the Claimant. The ET found this was not the accurate label for the conduct in fact relied on by the Respondent and considered that rendered the dismissal unfair.
On the Respondent’s appeal against that conclusion, although it would be wrong to place undue focus on the label used by an employer, in this case the ET had not lost sight of the questions it had to consider in terms of fairness for the purposes of section 98(4) ERA 1996. The Respondent had taken the view that there was a physical assault regardless of the circumstances (the Claimant had accepted he accidentally touched the patient’s neck for a matter of seconds, whilst trying to defend himself from an attack) and the ET considered this led it to unduly constrain its consideration of the circumstances, and thus to fail to carry out a fair investigation, and may have led the Claimant to respond differently to the charge against him. The ET did not focus solely on the label but reached permissible conclusions on the issues that went to the fairness of the Respondent’s reliance on this factor. It was not for the EAT to interfere; the appeal would not be allowed on this basis.
Similarly, on the safeguarding issue relied on by the Respondent, the ET concluded the Respondent had failed to investigate matters going to the central point of the Claimant’s response and that rendered this unfair. That was, again, a permissible view on the material before the ET, and the EAT could not interfere with its conclusion in this respect.
As the Respondent had relied on all three incidents as constituting the reason for the dismissal, given the EAT’s conclusions on these two matters, the appeal against the ET’s decision on liability – the finding of unfair dismissal – must fail.
On the third matter relied on by the Respondent, however, the EAT did consider that the ET had erred. This was the charge that the Claimant had failed to comply with a reasonable management instruction by failing to work his shift on an alternative ward immediately after the ‘assault’ incident referred to above. The ET had needed to first assess whether the Respondent had given a reasonable instruction in these circumstances. That did not (as the Respondent contended) simply depend on what the employer said; the ET had been entitled to take into account the broader context. On the other hand, it was insufficient for the ET to simply say that the reasonableness of the instruction was ‘questionable’. Furthermore, the ET had apparently applied a test of what a reasonable employer would do, which was not the correct question. The range of reasonable responses allowed that a reasonable employer might dismiss fairly even in circumstances where another employer might have decided not to do so. This rendered the ET’s conclusion on this third matter unsafe. Although this did not undermine the ET’s finding of unfair dismissal, the point was not wholly academic as it was relevant to the Polkey issue (see below). It would thus be remitted to the same ET for rehearing on this point.
On the ET’s decision to make no reduction under Polkey, the appeal would be allowed. Whilst finding that the Respondent’s reason for dismissal had encompassed all three incidents, at earlier stages in its reasoning the ET had accepted that each, taken separately, might still be relevant at the remedy stage. That seemed to imply that it had accepted this was the correct approach at the Polkey stage and its later refusal to consider such a reduction did not explain this apparent inconsistency. Moreover, the findings on the individual incidents seemed to allow that there might have been a fair finding of misconduct on the part of the Claimant and it again appeared inconsistent for no Polkey reduction even to be considered in these circumstances. The appeal would be allowed on this question and the matter remitted to the same ET for reconsideration.
Eady QC HHJ
[2015] UKEAT 0109 – 15 – 1712
Bailii
England and Wales
Employment
Updated: 17 January 2022; Ref: scu.565098