The EAT considered the Polkey principle: ‘a finding that a dismissal is unfair does not mean that an employee is entitled to full compensation for the loss resulting from the loss of his job. He is only entitled to the loss he has sustained which is attributable to action taken by the employer, so that, if he would have been dismissed even if the employer had acted properly and fairly, the employee’s compensatory award is likely to be small or even nil. In Polkey v A E Dayton Services Ltd [1988] I.C.R. 142, 163 Lord Bridge of Harwich quoted with approval dicta of Browne-Wilkinson J. in Sillifant v. Powell Duffryn Timber Ltd. [1983] IRLR 91, 96:
‘There is no need for an ‘all or nothing’ decision. If the industrial tribunal thinks there is a doubt whether or not the employee would have been dismissed, this element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment.’
We think that it follows from the Polkey decision and from later authorities, including Red Bank Manufacturing Co. Ltd. v Meadows [1992] ICR 204; Rao v. Civil Aviation Authority [1992] I.C.R. 503; K. P. G. Computer Support Services Ltd. v Abayomi (unreported), 21 December 1992 and Dunlop Ltd. v Farrell [1993] I.C.R. 885, that the assessment of the compensatory award in this kind of case involves a two-stage process. First, the tribunal must ask itself whether if the employer had followed the proper procedures and acted fairly the employee would not have been dismissed. If the answer to that question is reasonably clear one way or the other, there is no difficulty. But in many cases the answer will be uncertain, in which situation, in order to give proper effect to section 74(1) of the Act of 1978 and the dicta of Browne-Wilkinson J. set out above, the tribunal must, as the second stage of the process, make a percentage assessment of the likelihood of the employee being retained which must then be reflected in the compensatory award.’
Citations:
[1993] UKEAT 555 – 92 – 2405, [1994] ICR 503
Links:
Citing:
Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
Cited – Charles Letts and Co v Howard EAT 1976
Abusive language between employer and employee may be repudiatory of the contract. However, an apology may lead to the conclusion that the conduct is not repudiatory but this is likely to be only the position where the words were spoken in heat and . .
Cited by:
Cited – NSM Music Ltd v Leefe EAT 20-Jun-2006
EAT Unfair Dismissal – Polkey deduction
Appeal on basis that Chairman failed to consider whether a Polkey deduction was appropriate in a failure to consult redundancy unfair dismissal. Respondent had been . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 19 June 2022; Ref: scu.210608
