London Metropolitan University v Storfer

An appellate tribunal should not substitute its own view for that of the employer when reviewing a conduct dismissal. It may intervene only where the Employment Tribunal has misdirected itself or has misapplied the reasonable-employer standard.

A finding of substantive unfairness may preclude a Polkey reduction based on procedural unfairness. It does not prevent evidence-based consideration of a later, independent event which may have ended employment. Contribution and compensation issues are remedies matters. Parties must have a fair opportunity to make submissions, and where appropriate call evidence, before a tribunal fixes a contribution percentage or makes a Polkey assessment.

The claimant, a university lecturer, was dismissed for misconduct connected with continuing work for another university. His employer also relied on an earlier final written warning concerning leave. The Employment Tribunal held the dismissal substantively unfair, assessed contributory fault at 10 per cent, and made no Polkey reduction.

The employer appealed against the unfair-dismissal finding and the decisions on contribution and Polkey. It contended that the Tribunal had substituted its own view for that of a reasonable employer. It also contended that it had not been given an opportunity to address contribution or later redundancy as a potential limit on compensation.

1. The appeal was allowed in part. The challenge to liability for unfair dismissal was dismissed. The Employment Tribunal had applied the correct reasonable-employer approach and was entitled to find that dismissal was substantively unfair.

2. The Tribunal did not substitute its own judgment for that of the employer. It made an evaluative finding that the employer fell below the standard of a reasonable employer. Its conclusion was supported by its findings that the employer began under a minor-misconduct regime but escalated the matter into a dismissible allegation, while relying on the earlier leave warning.

3. The EAT applied Sarkar v West London Mental Health NHS Trust [2010] IRLR 408 CA. The employer’s escalation from a moderate procedure to dismissal was capable of rendering the dismissal unfair on the facts found. There was no legal basis for disturbing that conclusion.

4. Contribution under sections 122 and 123 of the Employment Rights Act 1996, and a Polkey assessment, concern remedy. A tribunal should make clear how it will deal with them, and must give the parties a fair opportunity to advance submissions. It should not fix a contribution percentage without hearing the parties’ competing arguments.

5. The finding of substantive unfairness meant that no procedural-defect Polkey argument could succeed. However, fairness required the Tribunal to consider, on evidence, whether later redundancies or another wholly independent event would have ended the claimant’s employment. The 10 per cent contribution figure and the refusal of any Polkey reduction were set aside. The existing factual findings on contribution remained. The issues were remitted, ordinarily to the same Tribunal, for determination at the remedy hearing.

• Employment Appeal Tribunal: appeal allowed in part. The finding of unfair dismissal was upheld, but contribution and Polkey issues were remitted.
• Employment Tribunal, East London: reserved judgment sent on 15 November 2010. It found ordinary unfair dismissal, assessed contributory fault at 10 per cent, and made no Polkey reduction.