UNFAIR DISMISSAL – Polkey deduction
UNFAIR DISMISSAL – Contributory fault
UNFAIR DISMISSAL – Mitigation of loss
Unfair dismissal – compensation – Polkey reduction – contributory fault – mitigation of loss
The ET found the Claimant had been dismissed from his employment by reason of his conduct, after he had initiated an altercation with the Managing Director of the Respondent (albeit after some provocation), which had resulted in the latter ending up on the floor. The Respondent admitted that the Claimant’s dismissal had been procedurally unfair but contended that a fair process would have made no difference, that any award should be reduced by reason of the Claimant’s conduct and that the Claimant had failed to take reasonable steps to mitigate his losses. The ET agreed, making nil basic and compensatory awards. The Claimant appealed.
Held: allowing the appeal in part
The Claimant had been wrong to suggest that the ET had failed to apply the different tests required in respect of reductions to a basic award (under section 122(2) Employment Rights Act 1996) and to a compensatory award (under section 123(6)); it was apparent that the ET had understood the test it was required to apply in respect of the basic award, had had regard to the relevant factors and had reached a permissible conclusion that it was just and equitable to make a nil award under this head, giving adequate reasons for that decision.
The ET’s decisions in respect of the compensatory award did not, however, demonstrate that it had correctly applied the requisite tests. When making a Polkey reduction (relevant to the assessment of compensation under section 123(1)), the ET had moved from a finding that summary dismissal was ‘an appropriate course of action’ to its conclusion that ‘no reasonable employer could have tolerated’ the Claimant’s conduct, wrongly assuming that dismissal was inevitable (contrary to the guidance provided by the EAT in Brito-Babapulle v Ealing Hospital NHS Trust [2013] IRLR 854). It had, further, failed to consider what a fair procedure might have entailed in these circumstances, which was relevant to its assessment whether the implementation of a fair process would have been likely to have led to the same result. As for the question of a reduction in respect of the Claimant’s contributory conduct under section 123(6), there was no indication that the ET had considered whether it was just and equitable to make a nil award under this head; it had, rather, apparently assumed that no award should be made given its conclusion that the Claimant was entirely responsible for the dismissal but that failed to allow for the possibility that it might still not be just and equitable to reduce the award by 100% (Lemonious v Church Commissioners UKEAT/0253/12 applied). Although it was possible that its conclusion in this regard might be the same as that reached in respect of the basic award, that was not inevitably so.
Finally, the ET’s conclusion on mitigation did not demonstrate that it had kept in mind that the burden of proof remained on the Respondent throughout; the fact that the Claimant had not demonstrated that he had acted reasonably did not necessarily mean the Respondent had satisfied the burden of showing that he had acted unreasonably.
The issues arising in respect of the compensatory award would therefore be remitted to the ET for reconsideration.
[2018] UKEAT 0071 – 18 – 1506, [2018] ICR D15
Bailii
England and Wales
Employment
Updated: 12 November 2021; Ref: scu.631848
