Ekwelem v Excel Passenger Service Ltd

An appellate court may uphold a tribunal’s decision despite a misdirection where the tribunal’s unchallenged findings make the correct result inevitable. A Polkey assessment must be kept distinct from contributory conduct under sections 122(2) and 123(6) of the Employment Rights Act 1996.

For contributory conduct, the tribunal must identify blameworthy conduct, decide whether it caused or contributed to dismissal, and determine what reduction is just and equitable. Blameworthy conduct may be unreasonable conduct falling short of contractual breach. A 100 per cent reduction in both basic and compensatory awards is exceptional but may be justified where the employee’s conduct is the sole cause of dismissal.

The claimant, a driver and vehicle supervisor, brought claims for unlawful deductions from wages and unfair dismissal. An earlier Employment Tribunal decision was successfully appealed and remitted for determination of unpaid wages between 1 September and 8 October 2010 and of contributory conduct, on the basis that the claimant had been unfairly dismissed.

On remission, Employment Judge Milton made findings under the heading of unlawful deductions but did not expressly dispose of that claim. He reduced both the basic and compensatory awards by 100 per cent, although he expressed his reasoning in Polkey terms. The claimant appealed, contending that the wages claim had not been decided and that the judge had applied the wrong legal test to contribution.

1. Appeal dismissed. The remitted tribunal’s decision was imperfectly expressed but its unchallenged findings established that the claimant was unwilling to return to work from the beginning of the relevant period. No wages were therefore properly due between 1 September and 8 October 2010, and there was no unlawful deduction.

2. The Employment Judge erred by addressing the reductions to the awards through Polkey. A Polkey reduction concerns the compensatory award and differs from contributory conduct under sections 122(2) and 123(6) of the Employment Rights Act 1996.

3. For section 123(6), the tribunal must identify the culpable or blameworthy conduct, determine whether it caused or contributed to dismissal, and decide whether a reduction is just and equitable. Conduct may be blameworthy although it is not a contractual breach. Section 122(2) permits a wider consideration of pre-dismissal conduct, whereas section 123(6) requires a causal connection with dismissal.

4. The error was not material. The tribunal had found that the claimant’s own blameworthy conduct led to the loss of his driving licence; that he declined available alternative work; that he failed to respond to an invitation to return after his licence was restored; and that he imposed an unreasonable condition of payment before returning. Those findings established that his conduct was the sole cause of dismissal. Any procedural failing by the employer was peripheral and non-causative.

5. This was therefore a rare case in which a 100 per cent reduction of both the basic and compensatory awards was justified. The challenge to the reconsideration decision was academic.

• Employment Appeal Tribunal: The appeal from the remitted tribunal was dismissed.
• Employment Tribunal on remission: Employment Judge Milton held that the awards should be reduced by 100 per cent and made findings bearing on the unlawful-deduction claim.
• Employment Appeal Tribunal: A successful earlier appeal before HHJ Hand QC remitted the unpaid-wages issue and the issue of contributory conduct to a differently constituted tribunal.
• Employment Tribunal: Employment Judge Balogun dismissed the wages claim and held that the claimant had resigned; alternatively, she found an unfair dismissal and 100 per cent contribution.