Vision Security Group Ltd (t/a VSG) v Goodyear

An employer seeking a Polkey reduction must raise the issue and identify the evidential basis for it before the Employment Tribunal. The EAT will rarely permit a new Polkey case to be advanced on appeal where further factual investigation is required.

A reduction is appropriate only where the employer establishes that dismissal would have occurred despite a fair procedure. Where the unfairness lies at the heart of the decision-making process, and the employee was not guilty of the alleged misconduct, the tribunal may conclude that a fair dismissal was neither inevitable nor likely.

The employee was summarily dismissed for alleged gross misconduct after an incident involving a member of the public at a shopping centre. The Employment Tribunal upheld claims for unfair and wrongful dismissal. It rejected contributory fault and found that a fair procedure would not have led to dismissal to any extent.

The employer appealed only against the refusal to make a Polkey deduction. It relied on the employee’s written acknowledgement that he might have handled the incident differently, although the point had not been advanced clearly before the Tribunal. The central issues were whether the point could be raised on appeal and whether the Tribunal’s refusal of a deduction was adequately reasoned.

1. Appeal dismissed. The employer’s proposed Polkey argument was a new point. Under Kumchyk v Derby City Council and the approach approved in CELTEC Ltd v Astley, the EAT will generally refuse a new point which was not argued below, particularly where it requires further investigation by an Employment Tribunal. The proposed argument depended on evidence which had not been identified as the foundation of a Polkey case and on which the Tribunal had made no finding.
2. The substance of the proposed reduction was also rejected. The principles stated in Software 2000 Ltd v Andrews require the employer seeking to contend that employment would have ended in any event to adduce relevant evidence. The Tribunal must assess all the evidence, including evidence from the employee. The employer had not shown how it would have acted after conducting a fair hearing.
3. Polkey applies following a finding of unfair dismissal where the dismissal would have occurred in any event. It was inapt to treat this case as involving a merely procedural defect. The unfairness went to the centre of the decision-making process: the investigation was improperly conducted, the disciplinary process was fundamentally flawed, and the alleged gross misconduct had not been proved. The Tribunal was entitled to find that dismissal after a fair procedure was neither inevitable nor likely.
4. The separate assessments of wrongful dismissal, contributory fault and reasonableness under section 98(4) of the Employment Rights Act 1996 were permissible and consistent with London Ambulance Service v Small. The Tribunal’s concise reasoning on Polkey was sufficient in the light of the submissions made below.

• Employment Appeal Tribunal: Appeal against the Employment Tribunal’s judgment registered on 25 March 2010 dismissed.
• Employment Tribunal: Claims for unfair and wrongful dismissal upheld; no reduction for Polkey or contributory fault.