Westerton (UK) Ltd v Armstrong

A Polkey assessment is a broad evaluative exercise in fixing the percentage chance that employment would otherwise have ended. A tribunal must identify the factors informing its assessment, but need not provide detailed reasoning for the precise percentage chosen. An appellate court should interfere only where the percentage is manifestly outside the proper range or is unreasoned.

Under section 123(6) of the Employment Rights Act 1996, a reduction requires blameworthy conduct which caused or contributed to the dismissal. Conduct which was handled poorly, but was not sufficiently unreasonable and did not contribute to the dismissal, does not justify a reduction.

The claimant succeeded before the Aberdeen Employment Tribunal in his claim for unfair dismissal. The tribunal held that the dismissal was procedurally and substantively unfair, made a one-third Polkey reduction for the chance of redundancy in 2016, and made no reduction for contributory fault.

The employer appealed on remedy only. It contended that the redundancy deduction was too low and inadequately reasoned, and that the claimant's handling of an email concerning an offshore engineer's mobilisation required a reduction under section 123(6) of the Employment Rights Act 1996.

The central issues were whether the one-third assessment disclosed an error of law and whether the claimant's conduct had caused or contributed to his dismissal.

1. Appeal dismissed. The Employment Tribunal was entitled to reduce the compensatory award by one-third for the chance that the claimant would have been made redundant in 2016.

2. A Polkey deduction concerns the likelihood of a future event, rather than proof that an event occurred. The tribunal had considered the downturn in work, the claimant's salary and the scrutiny likely to be given to his role. It had also rejected evidence that the company was about to close, and took account of its continued recruitment, survival and wish to retain experienced staff. Read in that context, its finding of a “substantial chance” did not mean a chance exceeding 50 per cent.

3. The one-third figure was a broad assessment open to the tribunal. The reasons in the judgment, including the findings concerning possible alternative roles, adequately explained it. Applying Contract Bottling Limited v Cave and Another [2015] ICR 146, the percentage was neither manifestly outside the proper range nor unreasoned.

4. For section 123(6), the tribunal correctly directed itself that it had to determine whether the claimant's actions were blameworthy, whether they contributed to the dismissal, and whether a reduction would be just and equitable. The claimant's single accepted error was failing to monitor an email. It caused no client complaint and fell short of conduct which was unreasonable in all the circumstances. The failure to obtain a work permit was not attributable to him.

5. The dismissal resulted from the employer's unreasonable attribution of the Canadian difficulties to the claimant. The tribunal was therefore entitled to find that the claimant's conduct neither caused nor contributed to his dismissal, and to make no further reduction. No remittal arose.

• Employment Appeal Tribunal: dismissed the employer's appeal against the remedy decision.

• Employment Tribunal, Aberdeen: held the dismissal procedurally and substantively unfair; applied a one-third Polkey deduction and made no contributory-fault reduction.