Unfair Dismissal; Remedy; Polkey Reduction; Contributory Fault
The Employment Tribunal found that the Appellant had been unfairly dismissed, but made no monetary award to him ‘because of his conduct’.
Held:
1) A reduction of compensation under section 123(6) ERA could still be made even where it could be said that, but for the factor(s) which made the dismissal unfair, a dismissal would not have occurred.
2) Once section 123(6) was engaged by the existence of blameworthy conduct on the part of the employee which contributed to the dismissal, fault of the employer (including factors which made the dismissal unfair) could also be taken into account in determining the appropriate percentage reduction to compensation.
3) Contrary to the position taken by both parties to the appeal, the Employment Tribunal had not made a Polkey reduction in this case. It was clear, however, from the Tribunal’s analysis of Polkey that it had reached an important factual conclusion for which there was no evidence. That error had also coloured its approach to its assessment of what would be a ‘just and equitable’ reduction for contributory conduct under section 123(6) ERA, and the Tribunal’s conclusion that a 100 per cent reduction was appropriate in this case was therefore wrong.
4) The Tribunal also appeared to have failed to recognise factors about the Respondent’s conduct which potentially mitigated the level of reduction that was appropriate.
The appeal was allowed and the case remitted to the same Tribunal to reconsider remedy.
Citations:
[2022] EAT 23
Links:
Jurisdiction:
England and Wales
Employment
Updated: 06 July 2022; Ref: scu.678570