Kingston Transport Ltd t/a Sussex Skips v Sanders

In assessing a Polkey reduction, a tribunal must assume that the employer would have adopted and carried out a fair procedure. It must then make a practical, evidence-based assessment of whether, and when, employment would probably have ended fairly.

A contributory-fault reduction under section 123(6) of the Employment Rights Act 1996 concerns the employee’s conduct. An employer’s procedural misconduct does not estop it from advancing contribution. However, a reduction is not justified where the findings show that the employee was not at fault for the dismissal incident and earlier matters had already been concluded by a disciplinary warning.

The employer summarily dismissed its heavy-goods driver following a collision and an alleged threatening altercation. The Employment Tribunal found the dismissal unfair. It made no Polkey or contributory-fault reduction and awarded compensation including 31 weeks’ loss of earnings.

On an earlier appeal, the Employment Appeal Tribunal remitted the issues of Polkey and contribution. The Tribunal again declined reductions, reasoning that the employer would not have followed a fair procedure and could not rely on contribution after its own procedural failures. The employer appealed again.

The central issues were the correct counterfactual approach to a Polkey deduction, the scope of contribution under section 123(6), and whether the Appeal Tribunal should itself assess any reduction.

1. Appeal allowed in part. The Tribunal erred in law in rejecting a Polkey deduction because it considered that this employer would again have used an unfair procedure. A Polkey assessment requires the assumed implementation of a fair procedure. The question is what would probably have happened had that procedure been followed.

2. The Tribunal also erred in treating the employer’s own conduct as a bar to a contributory-fault argument under section 123(6) of the Employment Rights Act 1996. The statutory inquiry concentrates on the employee’s conduct; there is no estoppel preventing an employer from raising contribution because it acted unfairly.

3. Those errors did not establish contributory fault on the facts. The Tribunal had accepted the employee’s account that he was not at fault for the collision which caused the dismissal. The earlier driving incidents had been dealt with through a written warning. It would therefore be wrong to reduce compensation for those matters.

4. With the parties’ agreement, and to avoid the cost and delay of a further remission, the Appeal Tribunal assessed the Polkey issue itself. The employee’s deteriorating driving record made a further culpable accident and eventual dismissal likely. Allowing for a fair investigation, disciplinary process, accompaniment, disclosure of witness material and appeal, employment would probably have ended about six months, or 26 weeks, after the actual dismissal.

5. The compensatory award was adjusted to reflect that assessment. All other grounds of appeal were dismissed.

• Employment Appeal Tribunal: On an earlier appeal, the employer’s appeal was allowed because the Tribunal’s findings on the reason for dismissal were unclear and it had not properly addressed Polkey or section 123(6) of the Employment Rights Act 1996. The case was remitted to the same Tribunal.
• Employment Appeal Tribunal: In this appeal, [2012] UKEAT 35_12_2304, the employer’s appeal was allowed in part and the Appeal Tribunal made the Polkey assessment itself.
• Employment Tribunal, Brighton: The Tribunal found the dismissal unfair and awarded compensation. On remittal, it again made neither a Polkey reduction nor a contribution reduction.