EAT UNFAIR DISMISSAL
Reinstatement/re-engagement
Polkey deduction
Where the parties are requested or permitted to make written submissions to the Employment Tribunal following a remedies hearing, the assessment of practicability of re-engagement is to be judged on the basis that an order would take effect after such submissions have been made. Accordingly, applying and adapting the approach explained by Underhill P in Great Ormond Street Hospital v Miss Patel UKEAT/0085/07/LA at paragraph 27(1), in such circumstances, in practice practicability is to be judged after such submissions are made to the Employment Tribunal. The ET erred in failing to judge practicability of re-engagement as at a date after submission of material after the conclusion of the remedies hearing. Appeal allowed. Decision not to make an order for re-engagement set aside and the application for an order for re-engagement remitted for re-hearing. Allowing the conditional cross-appeal, the Respondent is permitted to advance an argument on impracticability by reason of alleged lack of confidence of the Claimant in the Respondent, an issue raised in post-hearing submissions. Unconditional Polkey cross appeal dismissed.
Judges:
Slade J
Citations:
[2012] UKEAT 0402 – 11 – 1010
Links:
Jurisdiction:
England and Wales
Employment
Updated: 05 November 2022; Ref: scu.464796