EAT Unfair Dismissal – (1) Whether the Employment Tribunal misapplied the Polkey principle.
Applying Software 2000 Ltd v Andrews and Ors [2007] ICR 825, concluded Employment Tribunal’s use of the language of probability rather than chance disclosed a possible error of approach. Moreover, the failure to make any Polkey reduction was puzzling given the ET’s finding of 50% contributory fault on the Claimant’s part and the reasons failed to address this and the fact of the final written warning to which the Claimant remained subject at the time of the dismissal
Appeal allowed on this point and the Polkey issue remitted to the same ET.
(2) Whether the Employment Tribunal erred in failing to apply the 50% reduction in respect of the Claimant’s contributory conduct to all elements of the award made.
Allowing the appeal on this ground also:
The Tribunal approach to the notice pay award and the compensation for the employer’s recoupment of training costs disclosed an error in that these were treated as breaches of contract, when no such claim was before the ET. There was simply no explanation for the failure to apply the reduction to the award for loss of statutory rights.
In any event, agreeing with the Respondent, the operation of section 123(6) ERA did not permit the differential treatment of different elements of the compensatory award in this regard: the Tribunal’s discretion went to the decision to make any reduction for contributory fault and to the percentage of that reduction, not to its subsequent application.
The Tribunal’s Judgment set aside and the appropriate reduction made to each of these elements of the award.
Eady QC
[2014] UKEAT 0105 – 13 – 3101
Bailii
England and Wales
Employment
Updated: 02 December 2021; Ref: scu.523453