Markham v Brighton Football Club (RFU) Ltd

Where a dismissal is automatically unfair under section 98A(1) of the Employment Rights Act 1996, the reverse-Polkey provision in section 98A(2) does not apply. The tribunal must not dismiss the unfair-dismissal claim by applying that provision.

Compensation may nevertheless be assessed on the basis that a fair dismissal would inevitably have occurred after a proper procedure. The award should reflect the period required to complete that procedure, together with any appropriate award for loss of statutory rights and the statutory uplift for failure to comply with dismissal procedures.

The claimant, the respondent football club’s Catering Manager, was dismissed for redundancy in July 2009. The Employment Tribunal found that the respondent had wholly failed to comply with the applicable statutory dismissal and disciplinary procedure. It therefore found the dismissal automatically unfair under section 98A(1) of the Employment Rights Act 1996.

The Tribunal then considered section 98A(2), found that a fair redundancy dismissal would have occurred had a proper procedure been followed, and stated that the claim failed. It made no compensation award. The claimant appealed against that internally inconsistent disposal and sought an assessment of compensation.

1. Appeal allowed. Having found a total failure to comply with the statutory dismissal and disciplinary procedure, the Employment Tribunal had correctly found the dismissal automatically unfair under section 98A(1) of the Employment Rights Act 1996. It then erred by considering section 98A(2) and treating the claim as dismissed.

2. Section 98A(2), the reverse-Polkey provision, did not apply to a dismissal rendered automatically unfair by section 98A(1). The Tribunal’s conclusion that a proper procedure would have produced a fair redundancy dismissal could therefore not defeat liability.

3. The conclusion remained relevant to remedy. Applying Polkey principles, compensation could be limited to the loss sustained before a fair redundancy dismissal would inevitably have taken effect. On the Tribunal’s findings, a proper redundancy procedure would have taken four weeks. The resulting wage loss was £1,280.

4. The EAT determined remedy rather than remit the case because the necessary facts had been found and the respondent did not participate. It added £350 for loss of statutory rights and applied a 25 per cent uplift under section 31 of the Employment Act 2002, having regard to the respondent’s complete procedural failure and its size and resources.

5. The compensatory award was assessed at £2,037.50. The EAT did not disturb the finding that, following a fair procedure, redundancy dismissal would have been inevitable.

• Employment Appeal Tribunal: appeal allowed from the Brighton Employment Tribunal’s reserved judgment, promulgated on 24 May 2011. The EAT upheld the finding of automatic unfair dismissal but set aside the Tribunal’s effective dismissal of the claim and assessed compensation.
• Employment Tribunal: found the dismissal automatically unfair under section 98A(1) of the Employment Rights Act 1996, but proceeded under section 98A(2) and made no compensation award.