Granchester Construction (Eastern) Ltd v Attrill

A Polkey assessment is a predictive exercise directed to the likelihood that the actual employer, after a fair procedure, would have dismissed the employee. It is wrong to substitute the hypothetical response of a reasonable employer.

A reduction for contributory conduct may be moderated in a compensatory award to avoid double counting a Polkey reduction. That reasoning does not apply to a basic award under Employment Rights Act 1996, section 122(2), because a Polkey reduction ordinarily does not affect that award. The tribunal must make clear findings about the employee’s blameworthy conduct and the facts the employer would probably have accepted after a proper investigation.

The Employment Tribunal at Cambridge held that the claimant had been unfairly dismissed for conduct. The employer had dismissed him without investigation or procedure after seeing him leave site early on two days and receiving timesheets recording full days’ work.

In assessing remedy, the Tribunal reduced future loss by 50% under Polkey, on the basis that there was an even chance that a reasonable employer would have dismissed after a proper procedure. It then made a further 10% deduction for contributory conduct from both the basic and compensatory awards.

The employer appealed against the remedy decision. The central issues were whether the basic award could be moderated by reference to the Polkey reduction, and whether the Polkey exercise had been conducted by reference to the correct employer.

1. Appeal allowed and remedy remitted. The Tribunal erred in reducing the basic award by only 10% because it moderated the claimant’s contributory-fault deduction to reflect the 50% Polkey reduction.

2. Section 122(2) of the Employment Rights Act 1996 concerns the basic award. A Polkey reduction normally has no bearing upon it. The possibility of double counting may justify moderation of a deduction from the compensatory award, but not from the basic award, save for the exceptionally rare case of a virtually contemporaneous fair dismissal. On the findings as understood by the Appeal Tribunal, a 10% basic-award deduction was perverse.

3. The Tribunal also applied the wrong test for a Polkey reduction. The question is the chance that this employer would fairly have dismissed this employee after a proper procedure. It is not the chance that a hypothetical reasonable employer would have done so. The exercise remains one of assessing chances; it does not become a binary determination that dismissal was inevitable.

4. On remission, the Tribunal must identify the conduct found to be blameworthy. It must also consider what facts the employer would probably and reasonably have accepted after the investigation and procedure that should have occurred. It may receive further evidence if necessary. The matter was remitted to the same Tribunal, subject to administrative convenience.

• Employment Appeal Tribunal: allowed the employer’s appeal on remedy and remitted the assessment of contributory conduct and Polkey reduction.
• Employment Tribunal at Cambridge: on 30 March 2012, held the claimant unfairly dismissed and made remedy reductions for Polkey and contributory conduct.