EAT Unfair Dismissal : Polkey Deduction – The dismissal of a bus driver for using foul language, in front of the schoolchildren he was driving, towards a female passenger was held unfair because the proprietor of the bus undertaking had summarily dismissed the Claimant without an adequate hearing. Four weeks loss of wages was awarded as compensation for future loss, since the Employment Tribunal regarded it as 100% likely there would then have been a fair dismissal. The Employment Judge rejected evidence from other passengers relating to an earlier incident as irrelevant. The Respondent appealed arguing she should not have done so and that the assessment of Polkey losses should have taken it into account.
Held: the appeal was misconceived. The focus on a claim of unfair dismissal is on the employer’s reasoning and behaviour at the time of dismissal: the complaints from the other passengers first surfaced months later. Polkey involves an assessment of the chances of future dismissal, which involves the question whether there may be a fair dismissal and, if so, when. Here the EJ had assessed four weeks: within that period nothing was known of the later complaints, so they could make no difference to the result.
Observations made about the proper approach to ‘Polkey’ assessments.
Langstaff P J
[2013] UKEAT 0040 – 13 – 2410
Bailii
England and Wales
Employment
Updated: 01 December 2021; Ref: scu.522355
