Jurys Inn Group v. Tatarova

A finding of automatic unfair dismissal does not prevent a Polkey reduction in compensation. The tribunal must assess whether, and when, dismissal would probably have occurred had the procedural defect been absent. The procedure must be considered as a whole. Defects at the initial hearing may be cured on appeal. Where the real issue is the employee’s honesty rather than the underlying medical condition, an employer need not obtain further evidence from the employee’s GP if that evidence would not affect the misconduct assessment. The case was remitted for assessment of the appropriate Polkey reduction.

The Respondent appealed against an Employment Tribunal decision upholding the Claimant’s claim of automatic unfair dismissal and awarding £1,992.75 after a 75 per cent reduction for contributory conduct. The Tribunal also found that the Respondent’s investigation was unreasonable because it had not contacted the Claimant’s GP, and concluded that the Claimant would not have been dismissed had a fair procedure been followed.

The appeal concerned the effect of defects in the disciplinary process, the relevance of a further medical enquiry, and whether compensation could be reduced on Polkey principles despite automatic unfairness.

1. Appeal allowed in part and remitted. The Employment Tribunal had correctly found automatic unfair dismissal because the statutory disciplinary procedure was not completed. That conclusion could not be reversed through the reverse Polkey provision in Employment Rights Act 1996, section 98(A)2.
2. The correct approach was to consider the disciplinary procedure as a whole. The failure to provide the disciplinary procedure before the initial hearing was capable of being cured at the appeal hearing, where the Claimant received the up-to-date procedure, assistance from an interpreter and support from observers. This reflected Taylor v OCS Group Limited [2006] IRLR 613.
3. The Tribunal erred in treating the failure to contact the Claimant’s GP as an unreasonable investigation. The material issue was whether the Claimant had dishonestly claimed Statutory Sick Pay after retracting the assertion that she was ill. The GP could confirm only that sick notes had been issued after examination. A further medical enquiry would therefore have been irrelevant to the honesty issue.
4. Although section 98(A)2 was unavailable, a Polkey reduction remained available. The Tribunal should have assessed, on the evidence available after the appeal, the percentage chance that the Claimant would have been dismissed and the likely timing of that dismissal. The matter was remitted to the same Employment Tribunal to determine compensation on that basis.

• Employment Appeal Tribunal: remitted the compensation issue to the same Employment Tribunal for assessment of a Polkey reduction.
• Employment Tribunal: upheld the claim of automatic unfair dismissal and awarded £1,992.75, after a 75 per cent reduction for contributory conduct.