Swanston New Golf Club Ltd v Gallagher (Senior)

A tribunal may decline to make a Polkey deduction where a fair-dismissal outcome cannot sensibly be predicted from the evidence. A degree of uncertainty is inherent in the exercise, but misconduct dismissals affected by undisclosed material, a piecemeal investigation and untested additional allegations may make the prediction too speculative.

A deduction for contributory conduct is distinct from a Polkey deduction. Its percentage is an evaluative judgment for the tribunal which heard the evidence. Reasons need identify the conduct and explain the evaluative conclusion; they need not show a mathematical calculation. An appellate tribunal should not substitute its view unless the assessment is plainly wrong.

The claimant, a golf club course manager and head greenkeeper, was dismissed for gross misconduct after allegations concerning his conduct at another golf club. The Employment Tribunal held the dismissal unfair because the employer’s investigation and disciplinary process were procedurally and substantively defective.

On remedy, the Tribunal made no Polkey reduction because it considered a fair-dismissal outcome too speculative. It nevertheless found that the claimant’s culpable conduct at the other club contributed to his dismissal, and reduced the compensatory award by one third. The employer appealed only those two compensation findings.

1. Appeal dismissed. The Employment Tribunal had considered whether to make a Polkey reduction and had adequately explained why none was appropriate. [2007] ICR 825 establishes that the assessment should be undertaken where possible, but an Employment Tribunal may conclude that even a percentage assessment is too speculative.
2. The Tribunal was entitled to reach that conclusion here. The dismissal for misconduct had been affected by undisclosed material, further evidence obtained after the disciplinary hearing, and unrelated matters used to bolster the case against the claimant. A fair process would have required consideration of the claimant’s explanations and of the reliability of that material. The EAT could not properly substitute its own assessment for the Tribunal’s judgment on the degree of speculation, particularly where the Tribunal had heard the evidence.
3. A finding of contributory conduct did not require a corresponding Polkey deduction. The two exercises address different questions. The former concerns the claimant’s past culpable conduct and the just and equitable reduction; the latter predicts what a fair employer would have done.
4. The one-third deduction for contribution disclosed no error of law. The Tribunal had identified the claimant’s conduct and its view that it was culpable and blameworthy, but had not regarded it as wholly or largely causing the dismissal. Its judgment also reflected the unproved allegations and the employer’s extraordinary, piecemeal investigation. The reasons, though sparse, were sufficient. This was not a case in which the percentage was plainly too low, unlike [1989] IRLR 366.

• Employment Appeal Tribunal: dismissed the employer’s appeal against the Employment Tribunal’s refusal to make a Polkey deduction and its one-third reduction for contributory conduct.
• Employment Tribunal: held that the claimant had been unfairly dismissed; made no Polkey reduction; and reduced the compensatory award by 33% for contributory conduct.