Lyons v Total Sign Solutions Ltd

A finding of serious misconduct supporting a Polkey deduction, a reduction for contributory conduct, or summary dismissal must rest on cogent reasoning and accurate facts. The tribunal must identify the precise misconduct found and address its necessary factual consequences.

A serious finding cannot stand where the reasoning relies materially on a factual error, fails to confront an obvious consequence of the finding, and treats matter of doubtful relevance as directly probative. A matter relevant to credibility is not necessarily relevant to whether the alleged misconduct occurred.

The Employment Tribunal held that the claimant had been unfairly dismissed after his return from a holiday taken during sickness absence. It nevertheless found that he had misled his GP in order to take the holiday. It applied a four-week Polkey reduction, reduced the basic award by 100% and the compensatory award by 50%, and dismissed the wrongful-dismissal claim.

The claimant appealed only those consequential findings. The central issue was whether the Tribunal's finding of serious misconduct was supported by legally adequate reasoning.

1. Appeal allowed. The findings underpinning the Polkey deduction, the reductions for conduct and the dismissal of the wrongful-dismissal claim were set aside and remitted to a different Employment Judge.

2. The finding made was necessarily that, on 23 July 2012, the claimant was fit for work, knew that he was fit, and falsely represented that he was suffering from stress in order to obtain a sick note enabling him to take the holiday. That was a serious finding which, if properly made, could justify each of the consequential conclusions.

3. The Tribunal's reasoning was flawed. It did not clearly formulate that precise misconduct or confront the resulting difficulties: the earlier sickness absence was accepted as genuine, so there had to have been a change in the claimant's condition, and the GP's later assessment had to have been wrong.

4. The Tribunal also materially relied on the incorrect premise that the trip required 12 working days' leave and therefore two days' leave to which the claimant was not entitled. The error originated in the respondent's submissions. It bore on the suggested reason why the claimant would have needed to feign illness and could not fairly be retained.

5. Finally, an alleged exaggeration to the GP on 26 June could bear on general credibility, but was not directly relevant to whether the claimant falsely claimed sickness on 23 July. Taken together, the inaccurate fact, inadequate reasoning and irrelevant consideration meant that the serious-misconduct finding could not stand. A fresh judge must reconsider all evidence and arguments; reductions or repudiatory breach remained possible outcomes.

• Employment Appeal Tribunal: allowed the claimant's appeal and remitted the Polkey, contributory-conduct and wrongful-dismissal issues to a different Employment Judge.
• Employment Tribunal: held that the claimant had been unfairly dismissed, but made deductions and dismissed the wrongful-dismissal claim on a finding of gross misconduct. The unfair-dismissal finding was not appealed.