The Employment Appeal Tribunal has required a tribunal to reconsider part of the remedy in a consultant-led dismissal, while leaving intact the finding that the employee did not contribute to his dismissal.
In Fargro Ltd v Hide, an outside consultant handled the investigation and disciplinary process, but the employer’s manager made both the dismissal decision and the appeal decision. The first-instance tribunal found the dismissal unfair and applied a 66.66 per cent Polkey reduction, reflecting its assessment that a fair procedure could still have produced dismissal.
The employer’s appeal against the absence of a contributory-fault reduction was dismissed. The appeal tribunal held that the evidence did not oblige the original tribunal to find culpable conduct by the employee. Much of the employer’s case depended on second-tier hearsay, and most of the relevant allegations were not put to the employee in cross-examination. A tribunal is not required to construct a case that a party did not properly advance.
The employee’s cross-appeal succeeded in part. The original reasons did not adequately address material submissions about whether he had a proper opportunity to explain himself to the person who actually decided to dismiss him. They also did not resolve the significance of the same manager later deciding the internal appeal.
Those omissions matter to the scale of any Polkey reduction. The unfair-dismissal finding itself remains in place, but the tribunal must reconsider the procedural analysis and, if it identifies further unfairness, revisit the two-thirds reduction. The ruling does not decide the final compensation figure or direct a particular percentage.
Read the official Employment Appeal Tribunal judgment.
