H WILKINSON v DRIVER AND VEHICLE STANDARDS AGENCY

A compensatory reduction for contributory conduct under section 123(6) of the ERA is not excluded merely because a fair procedure might have avoided dismissal. Blameworthy employee conduct may still have contributed to the dismissal.

Once section 123(6) is engaged, the tribunal must assess what is just and equitable. That assessment may include the employer’s fault, including procedural failures which made the dismissal unfair. A tribunal must base any Polkey reduction on evidence of what would probably or possibly have happened after a fair process. If both a Polkey and contributory-fault deduction are made, their distinct bases must be explained and double-counting avoided.

The Appellant, a driving examiner, was dismissed for gross misconduct after driving a candidate’s vehicle following an early-terminated test and failing promptly to record or disclose that conduct. The Employment Tribunal at Aberdeen held that the dismissal was unfair because of defects in the disciplinary process, but made no monetary award because it considered the Appellant wholly responsible for his misfortune.

The Appellant appealed only the remedy decision. The central issues were whether section 123(6) of the ERA could apply, whether the Tribunal had made a valid Polkey assessment, and whether a 100 per cent reduction to both compensatory and basic awards was lawful.

1. Appeal allowed. The Employment Tribunal’s order that no monetary award be made was set aside. The case was remitted to the same Tribunal to reconsider the basic and compensatory awards.

2. The Tribunal had not made a Polkey reduction. Its assessment that there was a 50 per cent chance that the line manager would maintain a position on trust did not address the necessary counterfactual question: what would have happened had there been a fair process, including proper disclosure and scrutiny of the relevant email. The Tribunal had also found, without evidence, that the manager regarded trust as irretrievably broken.

3. Section 123(6) of the ERA was capable of applying. An employee’s blameworthy conduct can contribute to dismissal even where the employer’s unfair conduct means that a fair process might not have resulted in dismissal. The relevant employee conduct included both driving the vehicle contrary to instruction and the lack of candour about it.

4. However, once contributory conduct is established, the reduction must be just and equitable. The employer’s fault is relevant when apportioning culpability. The undisclosed central allegation, the dismissing officer’s misreading of the email, and the decision to allow the Appellant to continue unsupervised work materially undermined the conclusion that he was wholly responsible. A 100 per cent reduction under section 123(6), and the corresponding reduction of the basic award under section 122(2), was therefore wrong.

5. On remission, the Tribunal must make an evidence-based Polkey assessment. It may make both a Polkey deduction and a contributory-conduct deduction, but must identify the separate basis for each and avoid double-counting.

• Employment Appeal Tribunal: appeal allowed; the remedy decision was set aside and remitted to the same Employment Tribunal ([2022] EAT 23).
• Employment Tribunal at Aberdeen: in a judgment dated 23 March 2020, held the dismissal unfair but made no monetary award because of the Appellant’s conduct.