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It is a well known principle that, where a dismissal which is found to be unfair because of a procedural failing would have been fair had a proper procedure been followed and the individual dismissed, a Tribunal may reduce the award of compensation to the period of time a fair procedure would have taken. However a Tribunal which looks at the wrong aspect of the procedure in determining the award may have its decision overturned in the EAT :-
The EAT, in Hill v Governing Body of Great Tey Primary School¸ considered the application of Polkey and the approach which should be taken.
The Tribunal found the Claimant’s dismissal was procedurally unfair, and assessed remedy on the basis that the Claimant’s appointment would anyway have terminated 2 months later if a proper procedure has been followed. It then applied an 80% reduction for contributory fault – leaving the Claimant with the grand sum of £49.99 as a compensatory award.
The EAT disagreed with the Tribunal’s approach to Polkey. It said that the Tribunal had asked whether if, following a fair procedure, the Respondent had decided to dismiss, such a decision would have been upheld as fair by a Tribunal. The EAT held that this was the wrong approach and what the Tribunal should have done is to look at the likelihood of that particular employer fairly dismissing the Claimant had it followed a proper procedure. It also emphasized that a Polkey assessment requires considering competing factors which may weigh in the employee’s favour, such as the employee’s disciplinary record, past performance and length or service, as well as the other factors.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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