I was recently instructed to represent a Claimant in a 2-day Employment Tribunal for unfair dismissal.

He had been employed for some 27 years and after failing to find an alternative role within the Company at the end of a career break, his employment was terminated without any procedure having been followed by his employers.

He issued a claim in the Employment Tribunal for Unfair Dismissal and sought compensation.

Whilst the Employment Judge found that he had been unfairly dismissed and made the basic award for Unfair Dismissal – the Respondent argued that there should be a 100% deduction to the compensatory award on the basis that the employee would have been dismissed even if a fair procedure had been followed.  The Judge agreed and made a 100% deduction to the compensatory award.

The case of Polkey v AE Dayton Services Ltd [1987] UKHL 8 plays an important role in the calculation of compensatory awards in such instances.

In Polkey, the House of Lord stated that where a tribunal concludes that taking the appropriate procedural steps would not have avoided the employee’s dismissal, a claim for unfair dismissal is not defeated but can be rejected by reducing the amount of compensation – “the Polkey deduction”.

Where it can be shown by an employer that there is a likelihood that had a fair procedure have been followed, the tribunal Judge has a wide discretion to make a reduction in the compensation to reflect what would be just and equitable in the circumstances – in some cases up to a 100% deduction.

Cases such as this show that the Tribunal does indeed have a wide discretion and that even where a fair procedure has not been adopted by an employer, the employee may not be entitled to their full losses as a result of the dismissal.

Renata Del Luongo – Barrister