The Claimant in this case was employed to deliver skips to customers. In 2009 there were five different incidents, including one involving an altercation with a customer, leading to disciplinary action.
A written warning was issued to the Claimant which would stay on his file for six months. During this six month period, the Claimant was involved in an accident with a car belonging to a member of the public and was then summarily dismissed after the Respondent alleged that he acted in an aggressive manner towards one of its directors. The dismissal letter specified all of the above actions as reasons for dismissal.
The Employment Tribunal found that he had been unfairly dismissed because the respondent had not followed the disciplinary procedures but declined to make any Polkey deduction or deduction for contributory fault. Based on the evidence it heard, the respondent would not have followed a fair procedure and therefore the respondent's Polkey argument failed. The respondent had also accepted the claimant's version of events following his collision with the car, to defend the insurance claim against them, but at the same time, had dismissed the claimant because they believed he was responsible. Contributory fault was not appropriate because the respondent had not allowed the claimant to explain his position at a hearing.
The EAT upheld the contributory fault decision but reduced the award according to Polkey. The Employment Tribunal misunderstood the basis of a Polkey reduction and made no deduction as it concluded that were there to be a further dismissal process the Respondent would again not conduct a fair procedure. The Employment Tribunal held that the proper 72 approach to a Polkey deduction was to assume that the employer would have carried out a proper procedure. The EAT affirmed that when assessing a Polkey reduction it must be assumed that fair procedures were put in place and carried out by the employer. The EAT also reminded tribunals that they should particularly concentrate on the Claimant‟s conduct when assessing contributory fault and not that of the employer.
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