Polkey v AE Dayton Services Ltd | |
---|---|
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.
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.
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]
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.
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.
“ | If it is held that taking the appropriate steps which the employer failed to take before dismissing the employee would not have affected the outcome, this will often lead to the result that the employee, though unfairly dismissed, will recover no compensation or, in the case of redundancy, no compensation in excess of his redundancy payment... [2] ... An industrial tribunal may conclude, as in the instant case, that the appropriate procedural steps would not have avoided the employee’s dismissal as redundant. | ” |
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]
United Kingdom labour law regulates the relations between workers, employers and trade unions. People at work in the UK benefit from a minimum charter of employment rights, which are found in various Acts, Regulations, common law and equity. This includes the right to a minimum wage of £7.83 for over 25-year-olds under the National Minimum Wage Act 1998. The Working Time Regulations 1998 give the right to 28 days paid holidays, breaks from work, and attempts to limit excessively long working hours. The Employment Rights Act 1996 gives the right to leave for child care, and the right to request flexible working patterns. The Pensions Act 2008 gives the right to be automatically enrolled in a basic occupational pension, whose funds must be protected according to the Pensions Act 1995.
In employment law, constructive dismissal, also called constructive discharge or constructive termination, occurs when an employee resigns as a result of the employer creating a hostile work environment. Since the resignation was not truly voluntary, it is, in effect, a termination. For example, when an employer places extraordinary and unreasonable work demands on an employee to obtain their resignation, this can constitute a constructive dismissal.
In United Kingdom law, the concept of wrongful dismissal refers exclusively to dismissal contrary to the contract of employment, which effectively means premature termination, either due to insufficient notice or lack of grounds. Although wrongful dismissal is usually associated with lack of notice sometimes it can also be caused by arbitrary dismissal where no notice was required but certain grounds were specified in the contract as being the only ones available but none existed.
The Transfer of Undertakings Regulations 2006 known colloquially as TUPE and pronounced tu-pee, are the United Kingdom's implementation of the European Union Transfer of Undertakings Directive. It is an important part of UK labour law, protecting employees whose business is being transferred to another business. The 2006 regulations replace the old 1981 regulations which implemented the original Directive.. The law has been amended in 2014 and various provisions within the 2006 Regulations have altered.
Nethermere Ltd v Gardiner And Another [1984] ICR 612 is a UK labour law case in the Court of Appeal in the field of home work and vulnerable workers. Many labour and employment rights, such as unfair dismissal, in Britain depend on one's status as an "employee" rather than being "self-employed", or some other "worker". This case stands for the proposition that where "mutuality of obligation" between employers and casual or temporary workers exists to offer work and accept it, the court will find that the applicant has a "contract of employment" and is therefore an employee.
O'Kelly v Trusthouse Forte plc [1983] ICR 728 was a UK labour law case, in which a bare majority held that a requirement for a contract is "mutuality of obligation" between the parties, which was thought to mean an ongoing duty to offer and accept work. It has been consistently doubted, and its outcome reversed by legislation, and its reasoning superseded by Autoclenz Ltd v Belcher, which states that the only "mutual" obligations that are required is the consideration of work for a quid pro quo.
Taylor v Connex South Eastern Ltd (5.7.2000) Appeal No: EAT/1243/99, is a UK labour law case, concerning the TUPE Regulations.
Redfearn v Serco Ltd [2012] ECHR 1878 is a UK labour law and European Court of Human Rights case. It held that UK law was deficit in not allowing a potential claim based on discrimination for one's political belief. Before the case was decided, the Equality Act 2010 provided a remedy to protect political beliefs, though it had not come into effect when this case was brought forth.
Johnson v Unisys Limited [2001] UKHL 13 is a leading UK labour law case on the measure of damages for unfair dismissal and the nature of the contract of employment.
Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 is a UK labour law case, concerning unfair dismissal, now governed by the Employment Rights Act 1996.
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South African labour law regulates the relationship between employers, employees and trade unions in the Republic of South Africa.
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The Redundancy Payments Act 1965 was a UK Act of Parliament that introduced into UK labour law the principle that after a qualifying period of work, people would have a right to a severance payment in the event of their jobs becoming economically unnecessary to the employer. The functions of the redundancy payment were to internalise the social cost of unemployment to the employer, make employers think more carefully before making people redundant, to compensate the employee for the loss of a job, and to provide a minimum sum of money for the employee in case future employment could not immediately be found. Together with the requirement of statutory minimum notice in the Contracts of Employment Act 1963, and the right to a fair dismissal first found from the Industrial Relations Act 1971, redundancy pay forms one of the three pillars of rights in dismissal.