22 February 2013 #Employment
What is the correct approach in awarding compensation in an unfair dismissal case where the dismissal is unfair but the tribunal thinks that the employee would have been dismissed in any event? The answer is that the tribunal should reduce the amount of compensation based on the percentage chances of the dismissal taking place and when it would have taken place, the so-called “Polkey reduction”. However, can a tribunal look at the matter hypothetically, based on its own view of the matter? No, a recent case confirms.
In Hill v Governing Body of Great Tey Primary School it was found that a Claimant’s dismissal was procedurally unfair. The Claimant was a dinner assistant who witnessed an incident of bullying of a child in the school playground. The Claimant told the child’s parents that their daughter had been tied to a railing in the playground and whipped across the legs by other pupils. The parents were also informed of the incident in a note from the School’s head teacher. The Claimant was suspended. She complained to the press about the suspension and in doing so confirmed what she had told the parents. The Claimant was dismissed by a panel of the School’s governors for breach of confidentiality. The tribunal found that the dismissal was procedurally unfair as the head teacher, who was involved in the matter, conducted the investigation herself and actively recommended dismissal to the governors.
The tribunal calculated the remedy on the basis that the Claimant`s employment would have terminated in any event two months later (had a proper procedure been followed). An 80% reduction on account of contributory fault was also applied, leaving the claimant with the £49.99 as her compensatory award.
In the EAT`s view, the tribunal`s conclusion on the Polkey issue indicated that it had asked whether if following a fair procedure the School had decided to dismiss, such a decision would have been upheld as fair by a tribunal (as falling "within the band"). That was the wrong approach. When applying Polkey, a tribunal is required to undertake a predictive approach as to the likelihood of that particular employer fairly dismissing the Claimant. The issue is not whether a hypothetical fair employer would / could have done so.
The EAT further emphasised that a Polkey assessment requires a consideration of competing factors, including those which weigh in the employee`s favour (e.g. lengthy service, past performance and an unblemished disciplinary record).