Frew v Springboig St John's School

When assessing a Polkey reduction, an employment tribunal must consider all relevant circumstances affecting the chance that dismissal would have occurred absent procedural unfairness. The inquiry must address both whether misconduct would have been established and what sanction would have followed, including mitigation and the opportunity to complete the disciplinary process and appeal.

The same requirement to consider all relevant circumstances applies to any reduction for contributory conduct. A tribunal must also expressly consider the statutory basic award, including whether any reduction would be just and equitable.

A social worker employed at a residential school was dismissed after an incident involving a pupil. The disciplinary hearing was not completed, the employee was not allowed an appeal hearing, and the Employment Tribunal nevertheless found the dismissal procedurally unfair while making no monetary award.

The Tribunal concluded that dismissal would have occurred with 100% probability under a fair procedure, reduced compensation by 100% for contributory conduct, and failed to consider a basic award. The central issues were whether those conclusions had been reached by considering all relevant circumstances and whether the statutory basic award had been overlooked.

1. Appeal allowed and case remitted. The Employment Tribunal erred in three respects: its assessment of the Polkey reduction, its assessment of contributory conduct, and its failure to consider a basic award.
2. For the Polkey issue, the Tribunal had to consider all relevant facts and circumstances when assessing the chance of dismissal absent procedural unfairness. It considered the absence of an appeal but overlooked that the disciplinary hearing had not been completed. The employee had therefore had no opportunity to present his full case, including matters relevant to whether he had intentionally harmed the pupil and to the appropriate sanction.
3. The Tribunal wrongly confined its reasoning to whether the employee had kicked the pupil and assumed that dismissal would necessarily follow. Even if the kick had been established, it had to consider whether another sanction might have been imposed. Relevant matters included provocation, the pupil’s attitude, the employee’s personal circumstances and his long service.
4. The same failure affected contributory conduct. Before reducing compensation under the 1996 Act, s.123(6), the Tribunal had to consider all the circumstances rather than only whether the employee had kicked the pupil.
5. Under s.119, the employee was prima facie entitled to consideration of a basic award. The Tribunal had wholly overlooked that issue. It also had to consider whether any reduction was just and equitable under s.122(2).
6. The issues of the Polkey reduction, contributory conduct and the basic award were remitted to the Employment Tribunal for reconsideration.

• Employment Appeal Tribunal: allowed the appeal against the Employment Tribunal’s monetary conclusions and remitted the Polkey, contributory conduct and basic award issues for reconsideration.
• Employment Tribunal: held the dismissal procedurally unfair, applied a 100% Polkey reduction, made a 100% reduction for contributory conduct and made no monetary award.