Sanders v Kingston Transport Ltd (t/a Sussex Skips) (Unfair Dismissal : Polkey deduction)

An Employment Tribunal deciding that a dismissal was unfair must still determine properly any pleaded issue concerning a reduction in compensation. A finding that the alleged misconduct relied on for dismissal did not occur does not, by itself, dispose of a Polkey deduction or reductions for contributory conduct under sections 122(2) and 123(6) of the Employment Rights Act 1996. Where those issues were properly raised but left undecided, the appropriate course is remission for further findings and determination.

Mr Sanders, an HGV driver employed by Kingston Transport Ltd, succeeded before an Employment Tribunal in his claim for unfair dismissal and received compensation of £17,852.50. The Tribunal preferred his account of an alleged altercation with a director and found that he had not attempted to strike the director. It then concluded that the dismissal was unfair and did not address the employer’s submissions on a Polkey deduction, contributory conduct under section 123(6), or reduction of the basic award under section 122(2) of the Employment Rights Act 1996. The employer appealed on those omissions. The central issue was whether the Tribunal had been entitled to treat its finding about the altercation as disposing of the reduction issues.

1. The appeal was allowed to the extent necessary to remit the matter to the same Employment Tribunal.
2. The Employment Tribunal had improperly narrowed the issue to which account of the alleged altercation on 21 September 2009 it preferred. Its finding that Mr Sanders had not acted as alleged did not dispose of the employer’s separate arguments concerning a Polkey reduction, section 123(6) contributory conduct, or section 122(2) reduction of the basic award.
3. The employer had properly raised those matters. The evidence included several earlier driving incidents, some of which were undisputed or accepted by Mr Sanders. The Tribunal therefore had to consider whether the dismissal resulted from those incidents, from the later accident, or from a combination of matters, despite its finding that proper procedures had not been followed.
4. The Employment Appeal Tribunal expressed no view on whether any reduction should be made. The same Tribunal was directed to make any further findings of fact necessary and decide the reduction issues.

• Employment Tribunal, Brighton: Mr Sanders succeeded in his unfair-dismissal claim and was awarded £17,852.50. The Tribunal did not determine the employer’s arguments on a Polkey deduction or statutory reductions.
• Employment Appeal Tribunal: The matter was remitted to the same Employment Tribunal for further consideration and determination of those issues.