Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been made redundant, given a redundancy letter setting out the payments due to him, and sent home. His complaint of unfair dismissal was dismissed, the industrial tribunal holding that even though the employer had been in breach of its obligation to consult under the relevant code of practice, Mr Polkey would still have been dismissed even if the employer had consulted properly.
Held: A dismissal may exceptionally not be unfair despite a failure to follow procedure. Where a dismissal is unfair for procedural reasons, it is not rendered fair merely because the dismissal would probably have occurred in any event even if proper procedures had been adopted. The dismissal remains unfair but the compensation is calculated by reference to the extent of the chance that the employee would have remained in his job had proper procedures been adopted. If dismissal was a certainty, there is no loss.
Lord Bridge said: ‘If it is held that taking the appropriate steps which the employer failed to take before dismissing the employee would not have affected the outcome, this will often lead to the result that the employee, though unfairly dismissed, will recover no compensation, or, in the case of redundancy no compensation in excess of his redundancy payment.’ and ‘an employer having prima facie grounds to dismiss . . in the great majority of cases not act reasonably in treating the reason as a sufficient reason for dismissal unless and until he has taken the steps, conveniently classified in most of the authorities as ‘procedural’ which are necessary in the circumstances of the case to justify that course of action . . in the case of redundancy, the employer will normally not act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation. If any employer has failed to take the appropriate procedural steps in any particular case, the one question the industrial tribunal is not permitted to ask in applying the test or reasonableness posed by [the Act] is the hypothetical question whether it would have made any difference to the outcome if the appropriate procedural steps had been taken. On the true construction of section 57(3) this question is simply irrelevant.’
As to the question of the need for consultation in compliance with the code of practice: ‘If the employer could reasonably have concluded in the light of the circumstances known to him at the time of dismissal that consultation or warning would be utterly useless he might well act reasonably even if he did not observe the provisions of the code. Failure to observe the requirement of the code relating to consultation or warning will not necessarily render a dismissal unfair. Whether in any particular case it did so is a matter for the industrial tribunal to consider in the light of the circumstances known to the employer at the time he dismissed the employee.’
Lord Mackay of Clashfern said: ‘It is what the employer did that is to be judged, not what he might have done. On the other hand, in judging whether what the employer did was reasonable it is right to consider what a reasonable employer would have had in mind at the time he decided to dismiss as the consequence of not consulting or not warning.
If the employer could reasonably have concluded in the light of the circumstances known to him at the time of dismissal that consultation or warning would be utterly useless he might well act reasonably even if he did not observe the provisions of the code. Failure to observe the requirement of the code relating to consultation or warning will not necessarily render a dismissal unfair. Whether in any particular case it did so is a matter for the industrial tribunal to consider in the light of the circumstances known to the employer at the time he dismissed the employee.’
Lord Bridge, Lord Mackay of Clashfern
[1988] ICR 142, [1987] 3 WLR 1153, [1988] AC 344, [1987] IRLR 503, [1987] UKHL 8, [1987] 3 All ER 974
Bailii
Employment Protection (Consolidation) Act 1978 57(3)
England and Wales
Citing:
Appeal from – Polkey v A E Dayton Services Limited CA 1986
The employee had been made redundant with no attempt at consultation and in breach of procedures.
Held: His claim of unfair dismissal was dismissed because even if the procedures had been followed, the result would have been the same. What . .
Wrongly decided – British Labour Pump Co Ltd v Byrne EAT 1979
The respondent had been dismissed for misconduct on the morning of the day on which he was dismissed. There had been previous misbehaviour but the industrial tribunal held that the case had to be determined on the basis of what had happened on that . .
Adopted – Sillifant v Powell Duffryn Timber Ltd CA 1983
The court explained the principle on ‘British Labour Pump’ as follows: ‘even if, judged in the light of the circumstances known at the time of dismissal, the employer’s decision was not reasonable because of some failure to follow a fair procedure . .
Overruled – W and J Wass Ltd v Binns CA 1982
. .
Cited – Williams and Others v Compair Maxam Ltd EAT 22-Jan-1982
Four employees said that they had been dismissed for redundancy, and now appealed against rejection of their claims.
Held: The court set out the obligations on an employer in a redundancy situation, including the need to look for alternatives . .
Approved – Earl v Slater and Wheeler (Airlyne) Ltd 1973
Sir John Donaldson said: ‘With respect to the tribunal, we think that it erred in holding that an unfair procedure which led to no injustice is incapable of rendering unfair a dismissal which would otherwise be fair. The question in every case is . .
Approved – Vokes Ltd v Bear 1973
The court discussed whether, having found errors in the employer’s dismissal of the emploee, the tribunal can take into account other circumstances to say that the employee might have been dismissed in any event.
Held: Sir Hugh Griffiths said: . .
Cited – W Devis and Sons Ltd v Atkins HL 6-Jul-1977
The ‘just and equitable’ test warranted the reduction or extinction of compensation for an employee who has been unfairly dismissed and then found to have been liable to summary dismissal. ‘The paragraph does not, nor did s. 116 of the Act of 1971, . .
Cited – Charles Letts and Co v Howard EAT 1976
Abusive language between employer and employee may be repudiatory of the contract. However, an apology may lead to the conclusion that the conduct is not repudiatory but this is likely to be only the position where the words were spoken in heat and . .
Cited – British United Shoe Machinery Co Ltd v Clarke EAT 11-Jul-1977
The respondent had been employed in a senior position by the appellant. He had complained that when being made redundant, the appellant had failed to make reasonable efforts to find him alternative employment. . .
Cited – Lowndes v Specialist Heavy Engineering Ltd 1977
. .
Cited – W and J Wass Ltd v Binns CA 1982
. .
Cited – Charles Letts and Co v Howard EAT 1976
Abusive language between employer and employee may be repudiatory of the contract. However, an apology may lead to the conclusion that the conduct is not repudiatory but this is likely to be only the position where the words were spoken in heat and . .
Cited by:
Cited – Thomas T/A Teddy Bears Day Nursery v Overton, Marsh EAT 17-Jul-2001
The employer, a nursery, appealed a finding of unfair dismissal of two nurses. The nursery had been called on by social services to deal with allegations of child abuse by the workers, on penalty of the nursery being closed, and, in any event, the . .
Applied – L Friend v Hazemead Ltd EAT 25-Mar-2002
EAT Unfair Dismissal – Compensation
The appellant had been dismissed summarily, but had not been given a chance to explain her position. She succeeded in a claim for unfair dismissal, but even thought there . .
Cited – Denco Ltd v Joinson EAT 14-Nov-1991
cw Employment – Unfair dismissal – Reasonableness of dismissal – Misconduct – Computer – Deliberate and unauthorised access to computer files – Summary dismissal for gross misconduct – Whether purpose for which . .
Cited – Pay v Lancashire Probation Service EAT 29-Oct-2003
The appellant challenged refusal of his claim for unfair dismissal. A probation officer, he had business interests in fire breathing and bondage merchandising which the service said were incompatible with his duties, and dismissed him. He complained . .
Cited – Capitol Security Services Ltd v T J Lloyd EAT 21-Apr-1998
EAT Unfair Dismissal – Procedural Fairness
Mr Lloyd had been dismissed on allegations of intimidation and discrimination. Neither at the first hearing nor on appeal was he told of the findings of fact upon . .
Cited – Susie Radin Ltd v GMB and others CA 20-Feb-2004
The company made redundancies but failed to carry out any effective or honest consultation. The tribunal awarded the maximum 90 days protective order. The company appealed saying that it had given the employees greater notice than was strictly due. . .
Cited – Middlesborough Borough Council v TGWU EAT 2002
The EAT discussed the need to focus on the seriousness of the employer’s default in complying with the mandatory obligation to consult employees before making redundancies: ‘The duties under the section are mandatory. It is not open to an employer, . .
Cited – Steel Stockholders (Birmingham) Ltd v Kirkwood EAT 1993
The tribunal considered the use of the word ‘procedural’ in the Polkey, and doubted whether Lord Bridge could have meant to classify matters such as the choice of a pool for redundancy, or the adoption of criteria for selection as procedural as . .
Cited – Lambe v 186K Ltd CA 29-Jul-2004
The claimant had been dismissed for redundancy, but the company had been found not to have consulted him properly, and he had therefore been unfairly dismissed. The tribunal had then found that even if consulted the result would not have been . .
Cited – King v Eaton Ltd (No 2) IHCS 1998
Employees were made redundant. The tribunal held the dismissals to be unfair because that there had been no consultation worthy of the name with any of the employees and because it was impossible to decide whether the selection criteria had been . .
Cited – Warner v Adnet Limited CA 26-Feb-1998
A dismissal of employees by administrative receivers just before the sale of a company as going concern was a redundancy outside the protection given by the TUPE provisions. ‘in view of the facts found by the tribunal about the appointment of the . .
Cited – Taylor v OCS Group Ltd CA 31-May-2006
The employer appealed against findings of unfair dismissal and disability discrimination. The employee worked in IT. He was profoundly deaf, but could lip read and read sign language. He had been accused of obtaining improper access to a senior . .
Reversed by Statute – Alexander and Hatherley v Bridgen Enterprises Ltd EAT 12-Apr-2006
The company made selections for redundancy, but failed to give the appellants information about how the scoring system had resulted in the figures allocated. The calculations left their representative unable to challenge them on appeal. The . .
Cited – A v B EAT 14-Nov-2002
The claimant worked as a residential social worker. Allegations were made against him of inappropriate behaviour with a child. The girl’s allegations varied. A criminal investigation took place but insufficient evidence was found. The investigation . .
Cited – Sandhu v Jan De Rijk Transport Ltd CA 10-May-2007
The court was asked whether the claimant had been dismissed or had resigned. He had attended a meeting to be told that his contract was to be finished. The company later complained that he had resigned when they were unable to reach a compromise on . .
Cited – Software 2000 Ltd v Andrews etc EAT 17-Jan-2007
EAT Four employees successfully established before the Employment Tribunal that they had been unfairly dismissed for redundancy. The Tribunal found that there had been procedural defects. In particular the . .
Cited – Kelly-Madden v Manor Surgery EAT 19-Oct-2006
EAT The employee was the practice manager at a general medical practice. She was dismissed for dishonesty, taking unauthorised pay for overtime hours. She alleged that she had been told by the former practice . .
Cited – C James and Sons v Puglia EAT 15-Jan-1992
The claimant had been made redundant after many years. He had worked for a farming partnership, and there had been recent changes in the partnership constitution. . .
Cited – Todd (T/A Hygia Professional Training) v Cutter EAT 13-Jul-2007
EAT PRACTICE AND PROCEDURE
Perversity
Appeal by Respondent based on an application for fresh evidence, which was clearly material and credible, but which did not satisfy the third Ladd v Marshall test . .
Cited – Swallow Security Services Ltd v Millicent EAT 19-Mar-2009
EAT UNFAIR DISMISSAL: Contributory fault
The employers dismissed the employee after a bogus redundancy exercise, after she had knowingly taken paid holiday in excess of her holiday allowance and failed to . .
Cited – McAdie v Royal Bank of Scotland CA 31-Jul-2007
The claimant succeeded in her claim for unfair dismissal, but now appealed against the reversal of the decision by the EAT. She had been dismissed for incapability to which she had contributed by her conduct. She had refused a move to another bank . .
Cited – London Borough of Tower Hamlets v Wooster EAT 10-Sep-2009
EAT AGE DISCRIMINATION
UNFAIR DISMISSAL – Polkey deduction
Council employee seconded to registered social landlord – Secondment comes to an end, so that he is formally redundant – Employee aged 49 and . .
Cited – Strand Transport Services Ltd v Whitworth CA 6-Aug-2009
The process of the company making the claimant redundant had been declared a sham. The company appealed against a decision that even had the correct procedures been followed, the decision would have been the same. The tribunal said that insufficient . .
Cited – Chagger v Abbey National Plc and Another CA 13-Nov-2009
The claimant appealed against the limitation of 2% placed on the uplift of his award of damages for having failed to comply with relevant dispute procedures. The tribunal had found exceptional reasons for reducing the uplift given the size of the . .
Cited – Wolesley Centers Ltd v Simmons EAT 24-May-1993
The EAT considered the Polkey principle: ‘a finding that a dismissal is unfair does not mean that an employee is entitled to full compensation for the loss resulting from the loss of his job. He is only entitled to the loss he has sustained which is . .
Cited – Rolls Royce Motor Cars Ltd v Price and others EAT 2-Feb-1993
The company appealed against findings of unfair dismissal of the claimants, saying that they had been made redundant. The claimants said that the company had broken the agreed procedure, and that the dismissals were automatically unfair.
Held: . .
Cited – Salford Royal NHS Foundation Trust v Roldan CA 13-May-2010
The employee appealed against the reversal by the EAT of her successful claim for unfair dismissal. She had been dismissed for alleged gross misconduct in disrespectful treatment of a patient. She said that investigation had been procedurally . .
Cited – Punch Pub Company Ltd v O’Neill EAT 23-Jul-2010
EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
The Employment Tribunal failed to consider the effect of S98A(2) of the Employment Rights Act . .
Cited – Ward v Ashkenazi CA 2-Feb-2011
The claimant had been awarded damages after being found to have been unfairly dismissed for an automatically unfair reason in requesting written particulars of her employment. The EAT had awarded a 50% uplift for non-compliance with statutory . .
Cited – Dunelm (Soft Furnishings) Ltd v Baker and Another EAT 30-Oct-2012
EAT Practice and Procedure : Amendment
Bias, misconduct and procedural irregularity
In the claim for unfair dismissal and wrongful dismissal, parties proceeded on common basis that dismissal was on 17 . .
Cited – P v West Dorset General Hospital NHS Trust EAT 9-Jun-2004
EAT Practice and Procedure – Postponement or stay – Application for stay of ET proceedings pending GMC professional misconduct hearing refused. No error of law; if so; stay appropriate. . .
Cited – Orr v Milton Keynes Council CA 1-Feb-2011
The employee was involved in offensive and insubordinate behaviour with his team leader. He was dismissed by a more senior manager, after a hearing in which the first manager gave evidence but which the claimant did not attend. It was later shown . .
Lists of cited by and citing cases may be incomplete.
Employment, Damages
Leading Case
Updated: 09 November 2021; Ref: scu.182080
