EAT Unfair Dismissal : Polkey Deduction – PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
The appeal took issue with the following aspects of the Judgment of the Employment Tribunal in this matter:
1) Unfair Dismissal – the finding that no compensatory award should be made given that a fair procedure would not have resulted in any different outcome and would have taken less time to complete than the period for which the Appellant had been paid to complete.
2) Unlawful Deductions of Wages – this claim (for andpound;5,400) was dismissed but with no Reasons being given.
Taking first the Polkey appeal, the approach taken by the Employment Judge solely had regard to the question as to how long a fair procedure might have taken. The point he did not address was whether there was a real chance that – had such a fair procedure been followed – the First Respondent might have concluded that the Claimant in fact had the right to remain in his employment. It was the Claimant’s case that, under immigration law, he continued to have the right to live and work in the UK and, had the First Respondent simply contacted UKBA and/or the Appellant’s Solicitors, it would (or should) have been so advised. That being so, it was an error to assume – as the Employment Judge had done – that a fair investigation/procedure would have made no difference. The presumption made by the Employment Judge meant that the relevant questions were not considered and, thus, the necessary findings of fact were not made. This was an error of law that vitiated the Employment Judge’s Judgment on compensation. The question of compensatory award under the unfair dismissal claim would need to be remitted to a new Employment Tribunal to be considered afresh.
On the question of the unlawful deductions claim, the difficulty was that simply no Reasons had been provided for the dismissal of this claim. This may well have been a simple oversight on the part of the Employment Judge but unfortunately he had since died and this matter was thus not capable of remedy under the Burns/Barke procedure. The appeal on this ground would similarly be allowed and the unlawful deductions claim remitted to be considered afresh by the new Employment Tribunal charged with determining the question of compensation for the claim of unfair dismissal.
Eady QC HHJ
[2014] UKEAT 0193 – 14 – 1510
Bailii
England and Wales
Employment
Updated: 24 December 2021; Ref: scu.539299