The Polkey Case

Employment Law – Reduction in Award – The Polkey Case

The case of Hamilton v Brentwood and Ongar Conservative Association [2007] involved issues relating to the recalculation of an employee’s award where the employee’s conduct was a contributory factor to her dismissal.

The employee in this case worked part-time for the respondent association. She was dismissed after installing a new piece of computer software. Prior to her installing the software, she was expressly told not to do so by the association.

After she was dismissed, she presented her originating application to the employment tribunal complaining of unfair dismissal.

The tribunal struck out the association's defence, and upheld the employee's complaint. However, it should be noted that the tribunal found that her conduct, in installing the software, had contributed to her dismissal.

When assessing the level of compensation that should be awarded, the tribunal found a number of flaws in the approach taken by the association. It also found that there was a chance that the employee's dismissal could have been fair, but it did not specifically address the Polkey case. It should be noted that the Polkey case is the case in which it was first held that an employer could argue that a financial award could be reduced on the basis that a fair procedure would probably result in a dismissal anyway. The association appealed against this decision. She appealed to the Employment Appeals Tribunal

At a preliminary hearing the Employment Appeals Tribunal narrowed the issues on appeal to  whether the tribunal should have considered the position under the Polkey case.

The association argued that the question of the Polkey case had to be considered by a tribunal, if necessary, when it deliberated the issue of compensation.

The appeal was allowed.

It was held that the tribunal was bound to make a finding after considering the issues raised by the Polkey case. In this case the tribunal had erred by failing to do so. Therefore, the matter would have to be reconsidered by the tribunal.

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© RT COOPERS, 2008. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.