The case of Polkey v A.E. Dayton Services Ltd led to an important House of Lords decision which resulted in the establishment of some fundamental points of employment law. The case determined that an otherwise potentially fair dismissal can nevertheless be judged unfair if there were procedural failures on the part of the employer.
Through this landmark case, the House of Lords set down the right of an employee to be consulted before being dismissed, except in exceptional circumstances where consultation or warning would have been futile. Even if the consultation would have had no effect on the decision to dismiss the employee, failure to follow procedures would lead to a finding of unfair dismissal.
However the Employment Act 2002 overturned this part of the Polkey decision. This 2002 Act provided that an employer's failure to follow procedures does not of itself mean that the dismissal is unfair if the employer can show that even if he had followed the procedures, he would still have dismissed. Even so, the dismissal would have to have been reasonable in all the circumstances for the employer to avoid a finding of unfair dismissal.
The remaining impact of Polkey is that if the Tribunal does find that there was an unfair dismissal but has doubts as to whether the employee would have been dismissed, then this can be reflected in the amount of compensation which it awards. The Tribunal can do this in one of two ways:
- By the tribunal deciding on a set percentage of the award, reflecting the probability that the employee would have kept their job had the unfair dismissal not taken place.
- By calculating the amount of extra time the employee would have worked had the correct dismissal procedures been carried out, and awarding an amount equal to the employee's net pay and other benefits for that period.
As specialist employment law solicitors working on both side of the employee/employer divide, Ashby Cohen are the ideal firm to turn to if you are involved in a situation concerning unfair dismissal at work. You can even take advantage of a free initial telephone consultation to assess your case and determine the best way to move forward.
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