Ekwelem v Excel Passenger Service Ltd (Unlawful Deduction from Wages)

An employee who is unwilling to return to work in any available role has no entitlement to wages for that period, so that non-payment is not an unlawful deduction.

A Polkey assessment must be kept distinct from a reduction for contributory conduct under sections 122(2) and 123(6) of the Employment Rights Act 1996. For section 123(6), the tribunal must identify blameworthy conduct, determine whether it caused or contributed to dismissal, and decide what reduction is just and equitable. A misdirection is immaterial where the tribunal's unchallenged findings inevitably support the result. A 100 per cent reduction in both awards may be justified in the rare case where the employee alone caused the dismissal.

The claimant, a driver and vehicle supervisor, brought claims for unlawful deductions from wages and unfair dismissal. Following an earlier successful appeal, the case was remitted to determine whether wages were due between 1 September and 8 October 2010, and whether the claimant had contributed to his unfair dismissal.

On remission, the Employment Tribunal found that there was a 100 per cent chance of a fair dismissal and reduced both the basic and compensatory awards by 100 per cent. It did not expressly determine the wages issue in its formal judgment, although it made relevant factual findings. The claimant appealed, contending that the wages claim had not been decided and that the tribunal had wrongly applied Polkey rather than contributory-conduct principles.

1. Appeal dismissed. Although the remitted tribunal's reasons could have been more clearly expressed, its unchallenged factual findings disposed of the wages claim. They established that, from suspension onwards, the claimant did not wish to return to work in any role offered by the respondent. No wages were therefore properly due between 1 September and 8 October 2010, and there was no unlawful deduction.

2. The tribunal erred by addressing the reduction in awards through Polkey, rather than through contributory conduct under sections 122(2) and 123(6) of the Employment Rights Act 1996. The two exercises are distinct. A Polkey reduction concerns the compensatory award only, whereas contributory conduct may reduce both awards.

3. For section 123(6), the tribunal must identify culpable or blameworthy conduct, determine whether it caused or contributed to dismissal, and then decide whether and to what extent a reduction is just and equitable. Blameworthy conduct need not be a contractual breach and may include unreasonable conduct. Section 122(2) is wider because it concerns conduct before dismissal, without requiring that the conduct caused or contributed to dismissal.

4. The error was not material. The tribunal had found that the claimant's conduct had caused the loss of his driving licence, that he refused available alternative work, that he failed to respond meaningfully to an invitation to return after his licence was restored, and that he imposed an unreasonable condition of payment before returning. Those findings showed that his blameworthy conduct was the sole cause of dismissal. The respondent's possible procedural failing was peripheral and non-causative.

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

• Employment Appeal Tribunal: Appeal dismissed. The Employment Appeal Tribunal upheld the remitted tribunal's conclusions despite its immaterial misdirection on contributory conduct.
• Employment Tribunal on remission: By a decision promulgated on 7 August 2014, found a 100 per cent chance of fair dismissal and made no basic or compensatory award. Reconsideration was refused.
• Employment Appeal Tribunal: On 14 October 2013, allowed an earlier appeal and remitted the wages issue for 1 September to 8 October 2010 and the issue of contributory conduct.