Archie Teixeira v Zaika Restaurant Limited & Anor

A Polkey assessment must predict what the actual employer would probably have done had it followed a fair procedure. It is not enough that an employer could reasonably have selected a pool of one. The tribunal must assess whether warning and genuine consultation would have occurred, whether they could have affected the pool or criteria, and how long they would have taken.

In redundancy cases, some warning and consultation will ordinarily be required, including for a small employer and where a pool of one may ultimately be fair. A finding of a 100% chance of dismissal on the actual dismissal date requires a properly reasoned basis for concluding that consultation would make no difference and cause no delay.

The claimant, a chef employed by the first respondent, was dismissed for redundancy during a substantial reduction in work caused by the Coronavirus pandemic. He was the only chef dismissed. The respondents accepted that no procedure had preceded the dismissal, so that it was at least procedurally unfair.

The Employment Tribunal held that a fair process would have resulted in the claimant's dismissal on the same date. It therefore reduced compensation to reflect a 100% chance of that outcome. The claimant appealed, challenging the tribunal's approach to the Polkey assessment, its acceptance of a pool of one, and its conclusion that he would inevitably have been the lowest scorer in a wider pool.

1. Appeal allowed. The Employment Tribunal erred in reducing the compensatory award to zero on the basis that the claimant could reasonably have been placed in a pool of one. The possibility that such a pool could fairly be selected did not establish that this employer would fairly have dismissed him when it did.

2. Under section 123 of the Employment Rights Act 1996, a Polkey assessment is predictive and evidence-based. It requires the tribunal to reconstruct what the actual employer would have done if it had acted fairly. It does not ask what a hypothetical reasonable employer could have done. The tribunal's reasoning was a non sequitur because it moved from the possible fairness of a one-person pool to certainty about the date and result of a fair dismissal.

3. Fairness under section 98(4) of the Employment Rights Act 1996 ordinarily requires at least some warning and consultation in a redundancy exercise. That remains so for a small employer and where a one-person selection pool might be adopted. Consultation could affect the pool, selection criteria, or result. Even where dismissal would have been inevitable, a fair consultation process might have delayed it and generated compensable loss.

4. The tribunal had not identified unusual or compelling circumstances capable of showing that dismissal without warning or consultation would fairly have occurred on the actual date. Nor was there only one possible outcome. On remission, it must assess the likely fair pool, any selection criteria, the claimant's prospects under them, and the likely duration of consultation.

5. The remedy issue was remitted to the same Employment Tribunal. Its existing factual findings would generally stand, subject to any further evidence the tribunal considered appropriate.

• Employment Appeal Tribunal: allowed the claimant's appeal in [2022] EAT 171 and remitted the remedy issue to the same Employment Tribunal.
• Employment Tribunal: upheld the claimant's unfair-dismissal complaint but found a 100% chance that a fair redundancy process would have produced dismissal on the same date.