Hill v Governing Body of Great Tey Primary School

A Polkey deduction requires a predictive assessment of the chances that the actual employer would have dismissed fairly, assuming fair procedure. It is not a review of whether a hypothetical dismissal would fall within the range of reasonable responses, and the issue is not decided on the balance of probabilities.

Article 10 must be applied using its statutory language. The tribunal must identify the protected expression, the legitimate aim, whether the restriction was prescribed by law, and whether it was necessary and proportionate in a democratic society. A public school is not subject to an absolute prohibition on disciplining staff for disclosures affecting its reputation or confidential information.

The claimant, a mid-day dinner assistant, was dismissed after telling a child’s parents and the press about an incident in which pupils had tied and struck another child. The Employment Tribunal found the dismissal unfair because the investigation and disciplinary process were procedurally defective, but held at the remedy hearing that a fair dismissal would have occurred after two months and reduced compensation by 80 per cent for contributory fault.

The claimant appealed, challenging the Polkey assessment, the approach to Article 10, the findings concerning confidentiality and contributory fault, and the failure to determine a wrongful-dismissal claim. The central issues were whether the Tribunal had applied the correct predictive and Convention-based tests and whether the remedy should be remitted.

1. Appeal allowed and remedy remitted. The Employment Tribunal had not demonstrated that it assessed the chances of what the actual employer would have done if it had acted fairly. Its references to what an employer could fairly do and to the range of reasonable responses suggested a retrospective review test. A Polkey assessment is predictive, must consider the spectrum of possible outcomes, and is not decided on the balance of probabilities.
2. Article 10 of the Convention was relevant to the fairness of dismissal because the school was a public authority. The Employment Tribunal should have applied the Article in its own terms. It should have asked whether the conduct fell within freedom of expression; identified the legitimate aim of the restriction; considered whether the restriction was prescribed by law; and decided whether it was necessary in a democratic society and proportionate to that aim. The Tribunal had to make its own assessment rather than apply a review test.
3. The Tribunal’s formulation that freedom of expression must be exercised judiciously, responsibly and not recklessly was an unsafe substitute for Article 10(2). The relevant aims could include protecting the reputation or rights of others and preventing disclosure of information received in confidence. A contractual or common-law duty of confidentiality could satisfy the requirement that a restriction be prescribed by law.
4. Derbyshire County Council v Times Newspapers did not establish that a state school could never discipline staff for bringing the school into disrepute. The question required a fact-sensitive balance between expression and the interests of pupils, parents and staff, including the accuracy and reliability of the information, available discreet means of disclosure, the employee’s motive, and the effect of the penalty.
5. The Tribunal’s finding of 80 per cent contributory fault could not safely stand. It had not clearly identified what information was confidential or to whom it was confidential, and its defective Article 10 analysis might have affected the assessment. The unresolved wrongful-dismissal claim could also be considered on remission. The factual findings at the liability hearing stood, subject to further evidence elaborating or explaining them; reinstatement and re-engagement were no longer available.

• Employment Appeal Tribunal: allowed the appeal against the remedy decision, set aside the Polkey and contributory-fault assessments, and remitted remedy, including the unresolved wrongful-dismissal issue if pursued.
• Employment Tribunal: had found the dismissal procedurally unfair, rejected the automatic unfair-dismissal claim, and later awarded compensation after finding that a fair dismissal would have occurred after two months and applying an 80 per cent reduction for contributory fault.