Polkey v AE Dayton Services Ltd

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Polkey v AE Dayton Services Ltd
Royal Coat of Arms of the United Kingdom.svg
Court House of Lords
Decided 19 November 1987
Citation(s) [1987] UKHL 8, [1988] ICR 142
Case opinions
Lord Bridge
Keywords
Unfair dismissal, Polkey deduction

Polkey v AE Dayton Services Ltd [1987] UKHL 8 is a UK labour law case, concerning unfair dismissal, now governed by the Employment Rights Act 1996.

Unfair dismissal in the United Kingdom is the part of UK labour law that requires fair, just and reasonable treatment by employers in cases where a person's job could be terminated. The Employment Rights Act 1996 regulates this by saying that employees are entitled to a fair reason before being dismissed, based on their capability to do the job, their conduct, whether their position is economically redundant, on grounds of a statute, or some other substantial reason. It is automatically unfair for an employer to dismiss an employee, regardless of length of service, for becoming pregnant, or for having previously asserted certain specified employment rights. Otherwise, an employee must have worked for two years. This means an employer only terminates an employee's job lawfully if the employer follows a fair procedure, acts reasonably and has a fair reason. Contrary to the gov.uk website, it is not automatically unfair for an employer to dismiss an employee for a discriminatory reason protected by the Equality Act 2010 ; there is no statutory provision for this and it just amounts to ordinary discrimination.

Employment Rights Act 1996 United Kingdom Law

The Employment Rights Act 1996 is a United Kingdom Act of Parliament passed by the Conservative government to codify existing law on individual rights in UK labour law.

Contents

The phrase 'Polkey deduction' has become a standard concept in UK Employment Tribunals, as a result of this case and later ones, meaning that even if a Tribunal decides a dismissal was unfair, it must separately decide whether the compensatory award is to be awarded in full, or be reduced by a percentage based on their estimate of the probability that the dismissal would have occurred anyway, even had a fair process been followed. [1]

Facts

Mr Polkey drove a van for 4 years until he was told to come to his manager’s office and informed that he was being made redundant on the spot.

The Tribunal said this was "heartless disregard of the provisions of the code of practice" but recognized that redundancies were necessary.

Judgment

Lord Bridge held that on the proper construction of the fairness test in the predecessor to the Employment Rights Act 1996 section 98, it was irrelevant to ask whether a different outcome may have resulted from a proper procedure, and it was not open for a tribunal to ask that. An employer does not act unreasonably if (1) employees who underperform are warned and given an opportunity to improve (2) employees who engage in misconduct are investigated and given a hearing (3) employees who are redundant are given good warning and a consultation with steps to minimise losses. But if the end result would be the same, then this will go to remedy not liability :

A legal remedy, also judicial relief or a judicial remedy, is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes another court order to impose its will.

In law, liable means "responsible or answerable in law; legally obligated." Legal liability concerns both civil law and criminal law and can arise from various areas of law, such as contracts, torts, taxes, or fines given by government agencies. The claimant is the one who seeks to establish, or prove, liability. Claimants can prove liability through a myriad of different theories, known as theories of liability. Which theories of liability are available in a given case depends on nature of the law in question. For example, in case involving a contractual dispute, one available theory of liability is breach of contract; or in the tort context, negligence, negligence per se, respondeat superior, vicarious liability, strict liability, or intentional conduct are all valid theories of liability.

History

After the development of a requirement for procedural fairness in dismissal was introduced by Polkey, an attempt was made in 2002 to amend the Employment Rights Act 1996 to add a statutory basis for procedural fairness. In 2008, the government repealed this attempt at statutory codification and reverted to relying on the case law developed in Polkey. [3]

See also

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References

  1. Adviceforemployers.co.uk Unfair dismissal compensation Polkey deductions
  2. See Earl v Slater Wheeler (Airlyne) Ltd [1973] 1 WLR 51, damages reduced to zero because of contributory fault.
  3. Explanatory Note on Section 2 of the Employment Act 2008