Singh v Glass Express Midlands Ltd

Reductions to the basic and compensatory awards in an unfair dismissal claim involve distinct statutory questions. Under section 122(2) of the Employment Rights Act 1996, the tribunal asks whether reduction of the basic award is just and equitable. Under section 123(6), it must first identify blameworthy conduct that caused or contributed to the dismissal, and then separately decide what reduction is just and equitable.

A Polkey assessment must consider what a fair procedure would have involved and whether it would probably have produced the same result; dismissal must not simply be assumed to be inevitable. On mitigation, the employer bears the burden of proving that the claimant acted unreasonably. Failure by the claimant to demonstrate reasonable steps is not itself sufficient.

The Claimant appealed against a decision of the Birmingham Employment Tribunal, which had found that his dismissal for conduct was procedurally unfair but awarded nothing under either the basic or compensatory heads. The incident involved an altercation with the Respondent’s managing director. The Employment Tribunal found that the Claimant initiated the violent behaviour, although there had been provocation and an initial push by the managing director.

The appeal challenged the Employment Tribunal’s approach to reductions for contributory conduct, its Polkey assessment of what would have happened after a fair procedure, and its conclusion that the Claimant had failed to mitigate his loss.

1. The appeal was allowed in relation to the compensatory award, but not the basic award. The Employment Tribunal had correctly applied section 122(2) of the Employment Rights Act 1996. It expressly asked whether reducing the basic award to nil was just and equitable, considered the Claimant’s blameworthy conduct and the mitigating circumstances, and reached a conclusion that was not perverse.

2. The Employment Tribunal had not demonstrated a correct Polkey approach under section 123(1). It moved from finding that summary dismissal was an appropriate course to concluding that no reasonable employer could have tolerated the conduct. That reasoning suggested that dismissal had been treated as inevitable, contrary to Brito-Babapulle. The tribunal also needed to consider what a fair procedure would have entailed, including its likely duration, and whether that procedure would probably have led to dismissal.

3. The Employment Tribunal had also failed to make the separate assessment required by section 123(6). Even where conduct caused or contributed to dismissal, it does not follow automatically that a 100% reduction is just and equitable. A nil compensatory award is unusual and requires adequate reasons, applying the staged approach identified in Steen and the caution in Lemonious.

4. The mitigation reasoning was inadequate. Under section 123(4), the Respondent retained the burden of proving that the Claimant acted unreasonably. The Claimant’s failure to show that he had taken reasonable steps did not, without more, establish unreasonable conduct.

5. The compensatory-award issues were remitted to the same Employment Tribunal, so far as reasonably practicable. There had been no wholesale or fundamentally flawed error of approach requiring remission to a different tribunal.

• Employment Appeal Tribunal: allowed the appeal concerning the compensatory award and remitted the Polkey, contributory-fault and mitigation issues.
• Birmingham Employment Tribunal: found the dismissal procedurally unfair, but made nil basic and compensatory awards and alternatively found a failure to mitigate.