Countrywide Freight Group Ltd v Hobbs

Where dismissal is procedurally unfair, the Polkey assessment does not ask whether, on the balance of probabilities, the employee would have been dismissed after a fair procedure. The tribunal must instead assess the percentage chance that the employee would have remained employed had a fair procedure been followed, and adjust compensation accordingly.

The assessment may range from no loss to a full loss. It may also reflect that a fair procedure would inevitably have led to dismissal at a later date.

The claimant, a depot supervisor, was dismissed for redundancy. The Employment Tribunal upheld his complaint of unfair dismissal because there had been no meaningful consultation or proper redundancy-selection procedure. It awarded full compensation after deciding that, on the balance of probabilities, he would have remained employed if a proper procedure had been followed.

The employer appealed only the Polkey finding. The claimant conceded that the tribunal had applied the wrong legal test, although he contested the employer’s perversity ground. The central issue was the correct basis on which to assess the chance that employment would have continued following a fair procedure.

1. Appeal allowed by consent. The Employment Tribunal erred in treating the Polkey issue as one to be resolved on the balance of probabilities.

2. The effect of Polkey v A.E. Dayton Services Limited [1988] ICR 142 was to displace the earlier approach under which a dismissal would be fair if a fair procedure would probably have resulted in dismissal anyway. A procedurally unfair dismissal remains unfair.

3. The compensatory award must instead be adjusted to reflect the percentage chance that the employee would have retained employment after a fair procedure. The appropriate assessment lies on a spectrum from 0 to 100 per cent. It may also be appropriate to find that employment would inevitably have ended at a later date.

4. The case was remitted to the same Employment Tribunal to determine that percentage assessment. It was also for that tribunal, after argument, to decide whether to admit further evidence on the Polkey issue.

• Employment Appeal Tribunal: allowed the employer’s appeal against the Polkey assessment and remitted the assessment to the same tribunal.
• Employment Tribunal: upheld the unfair-dismissal complaint, finding inadequate consultation and redundancy selection, and awarded full compensation.