The claimant was a teacher and worked for the respondent as a part-time IT teacher until her position became redundant.   As part of the redundancy process, other alternatives were looked at, one of which was the position of Maths teacher.  The claimant undertook a 4-week trial for this potentially suitable alternative role.  In taking on this alternative role, the claimant was informed that she would still be entitled to her redundancy payment and her redundancy date was extended until 31st December.

It was decided early on that the position as a Maths teacher was not a suitable alternative and the decision was made to dismiss the claimant.  The issue that arose was that the claimant did not receive the notice confirming the redundancy until 7th November even though it had been sent on 11th October.    This was because the claimant had been on holiday, but it did not constitute the three months’ notice that the claimant was entitled to through the ‘Burgundy Book’ which provided teachers with the terms and conditions.  The claimant was informed of the right to appeal but had seven days from the date of the letter.  When the claimant sought to appeal the decision, she was not allowed as it was regarded as being out of time when she had received the letter.

At first instance, the Employment Tribunal found that there was a genuine redundancy situation but that the dismissal was unfair as the respondent did not allow the claimant to appeal the decision even though it had been out of time.  There was a significant Polkey reduction made by the Employment Tribunal which reduced the claimant’s award by 90%.  The claimant appealed this decision and the respondent cross-appealed on the basis that the Polkey reduction should have been applied to the award for the loss of statutory rights.

The EAT upheld both the claimant’s and the respondent’s appeals.   On the claimant’s appeal it was held that there was insufficient clarity when it came to the validity of the notice of termination.   The EAT held that there was no attempt made by the ET to grapple with the legal issues relating to the claimant’s case and therefore it had to be remitted back to a new ET.   The respondent’s cross-appeal was allowed citing the decision in Hope v Jordan Engineering [2008] where it was held that any Polkey reduction should apply to awards for loss of statutory rights as well as other heads of compensation.   Accordingly, it was directed that the Polkey reduction should be made to the loss of statutory rights award as well as those other awards.

Practical Lessons

This case demonstrates the extent to which the Polkey reduction works to reduce the level of compensation awarded.   The decision by the EAT makes it clear based upon its previous decisions that any Polkey reduction should take effect against compensation for loss of statutory rights as well as other heads of compensation.   The case also reiterates the need for the Tribunal to grapple with the legal issues of the claimant’s case and give reasons for the decisions that have been made.
https://assets.publishing.service.gov.uk/media/5f7f39b58fa8f51e7f32e250/Mrs_J_Gardner_v_The_Coopers_Company_and_Coborn_School_UKEAT_0235_19_BA.pdf