Dee v Suffolk County Council

An Employment Tribunal determining remedy for unfair dismissal must give adequate reasons for any Polkey and contributory-fault reductions. A Polkey assessment concerns what the same employer and decision-makers would probably have done had the unfair features of the actual process been absent. It must not substitute a different hypothetical panel.

The Tribunal must explain the factors relevant to guilt, sanction and the percentage assessment. Separate Polkey and contributory-fault deductions are permissible, but the Tribunal must avoid double counting and ensure that the overall result is just and equitable. Different reductions to the basic and compensatory awards require reasons. An ACAS uplift decision must address the alleged Code failures and whether any failure was unreasonable.

The claimant, a head teacher, was dismissed for gross misconduct after physically removing a pupil from a classroom. The Employment Tribunal upheld his unfair-dismissal claim because of serious procedural defects in the investigation and disciplinary process, although it found that the governors had reasonable grounds for their belief and that dismissal was within the range of reasonable responses.

At remedy, the Tribunal reduced the compensatory award by 50% under Polkey and by a further 50% for contributory fault. On reconsideration, it confirmed a sequential overall reduction of 75%, applied only to the compensatory award, and refused an ACAS uplift. The claimant appealed and the council cross-appealed against the Remedy Judgment.

The central issue was whether the Tribunal had lawfully and adequately explained its remedy reductions and its refusal of an ACAS uplift.

1. Appeal and cross-appeal allowed. The Remedy Judgment was quashed on the challenged issues and remitted to the same Tribunal.

2. The Tribunal had correctly identified that a Polkey exercise requires a prediction founded on evidence rather than speculation. Its reasoning did not, however, explain how the identified matters bore on the outcome or how it weighed them to reach 50%. Its references to what a fair-minded or another panel of governors might have done disclosed an error of law. The inquiry must address what the actual employer and decision-makers would probably have done if the procedurally unfair elements had been removed.

3. On remittal, the Tribunal must decide whether the panel would have found the claimant guilty of gross misconduct or misconduct. If so, it must decide what sanction it would have imposed. It must identify each relevant factor, explain its effect, and state the evidential basis for any percentage assessment.

4. Successive Polkey and contributory-fault deductions do not necessarily amount to double counting. The Tribunal nevertheless gave insufficient reasons for its 50% contributory-fault reduction. It must separately assess that question, stand back, avoid double counting and ensure that the total result is just and equitable.

5. The absence of any explanation for applying a reduction only to the compensatory award was erroneous. Differing percentages for the basic and compensatory awards require reasons. The Tribunal also failed adequately to explain why the alleged failures to follow the ACAS Code were not unreasonable and why no uplift was warranted. It must address each alleged breach and apply the correct test with full reasons.

• Employment Appeal Tribunal: appeal and cross-appeal allowed. The remedy decision was quashed and remitted to the same Employment Tribunal.
• Employment Tribunal, Bury St Edmunds: found the dismissal unfair in written reasons sent on 2 May 2017. At remedy, in written reasons sent on 14 March 2018, it made sequential reductions and refused an ACAS uplift on reconsideration.