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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Allen v Queen Mary University of London (Unfair Dismissal: Contributory fault) [2016] UKEAT 0265_15_1104 (11 April 2016)
URL: http://www.bailii.org/uk/cases/UKEAT/2016/0265_15_1104.html
Cite as: [2016] UKEAT 0265_15_1104

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Appeal No. UKEAT/0265/15/JOJ

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

 

 

                                                                                                             At the Tribunal

                                                                                                             On 11 April 2016

 

 

 

Before

HIS HONOUR JUDGE DAVID RICHARDSON

(SITTING ALONE)

 

 

 

 

 

 

 

DR J F ALLEN                                                                                                         APPELLANT

 

 

 

 

 

QUEEN MARY UNIVERSITY OF LONDON                                                  RESPONDENT

 

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 


 

 

 

 

 

 

 


APPEARANCES

 

 

 

 

 

For the Appellant

MS ANNA MACEY

(of Counsel)

Appearing under the Employment Appeal Representation Scheme

For the Respondent

MR TIMOTHY ADKIN

(of Counsel)

Instructed by:

Eversheds LLP

Kett House

Station Road

Cambridge

CB1 2JY

 

 

 

 


SUMMARY

UNFAIR DISMISSAL - Contributory fault

 

The Employment Tribunal found that the Claimant had been unfairly dismissed but also that he “caused or contributed to his dismissal by 100%” and made no basic or compensatory award.  It erred in law and gave insufficient reasons in its application of section 122(2) and section 123(1) and (6) of the Employment Rights Act 1996.  The parties having invited the Employment Appeal Tribunal to determine issues of Polkey and contributory fault without remitting the case, the Employment Appeal Tribunal determined that there should be a 25 per cent reduction in the compensatory award on Polkey grounds and a further one third reduction in the awards for contributory conduct.

 


HIS HONOUR JUDGE DAVID RICHARDSON

 

Introduction

1.                  This is an appeal by Dr John Frederick Allen (“the Claimant”) against part of a Judgment of the Employment Tribunal sitting in East London (Employment Judge Burgher, Mrs Taylor and Mr Watson) dated 3 June 2015.  By its Judgment the Employment Tribunal found that the Claimant was unfairly dismissed, but it found that he caused or contributed to his dismissal by 100 per cent and awarded him no compensation.  He appeals against that finding.

 

The Background Facts

2.                  The Claimant was employed by Queen Mary University of London (“the Respondent”) as a Professor of Biochemistry working within its School of Biological and Chemical Sciences.  His employment commenced on 1 January 2005.  In 2011 Professor Matthew Evans became Head of the School and the Claimant’s line manager. 

 

3.                  Following his appointment Professor Evans began to consult about a restructuring of the School.  The Claimant was opposed to this restructuring and the criteria that were used to implement it.  The relationship between Professor Evans and the Claimant progressively worsened.

 

4.                  In May 2012 the Claimant and a colleague wrote a letter which was published in the Lancet journal.  It accused Professor Evans of double standards - in particular that he did not himself meet a “metric” that he sought to impose on his colleagues.  The Employment Tribunal found that this letter was misleading.  If the Claimant had fully stated the metric, Professor Evans would have been found to comply with it.  The Claimant gave an explanation for his failure to state the metric fully which the Employment Tribunal rejected as not credible.  As the Employment Tribunal found, the publishing of this misleading letter was a matter of concern not only to Professor Evans, whose reputation it affected, but also to other senior academics within the Respondent’s organisation.

 

5.                  Between 1 September 2012 and 31 August 2013 the Claimant was on sabbatical leave.  He expected to return to broadly the same duties after his sabbatical.  The Employment Tribunal found that this would be the norm and that it was very rare, if not unique, for an academic who goes on sabbatical to find all their pre-sabbatical teaching removed on their return.  This, however, is what happened in the Claimant’s case.  The Employment Tribunal was critical of the Respondent in this respect.  It did not accept the Respondent’s explanation for removing all the Claimant’s pre-sabbatical duties.  It was “unimpressed” with the absence of consultation with the Claimant concerning the removal of those duties.  It found that it was unreasonable to remove the duties and not in accordance with good and proper industrial practice.  The Claimant himself started a grievance against Professor Evans.  The grievance was at first ignored and when it was addressed it was rejected.

 

6.                  Although the Claimant was not given any of his previous teaching, he was asked to teach two courses.

 

7.                  Firstly, he was asked to teach a course entitled SBC100.  The Employment Tribunal found, although the Claimant disputed it, that he indicated that he was not prepared to do so.  Following a disciplinary process, he was issued with a written warning on 6 January 2014.  The subsequent appeal was dismissed on 19 March 2014. 

8.                  Secondly, in December he was asked to teach a course entitled SEF032.  He declined to do so.  After further emails in January 2014, to which he did not respond, on 4 February 2014 he was expressly instructed to teach the course.  He replied to the email that his decision had not changed.  He was told that if he did not undertake the teaching and respond by an agreed deadline it would constitute a failure to follow a reasonable management instruction.  Following an investigation and a disciplinary procedure he was dismissed summarily by letter dated 23 May 2014. 

 

The Employment Tribunal’s Reasons

9.                  A significant part of the Claimant’s case before the Employment Tribunal, in respect of which there is no appeal, related to the question of whether the Lancet letter amounted to a protected disclosure.  In its Reasons the Employment Tribunal, after setting out findings of fact from which I have already drawn, concentrated on the law relating to protected disclosure.  It set out the law relating to unfair dismissal only briefly.  It did not in terms address the law relating to contributory conduct or for that matter relating to Polkey v A E Dayton Services Ltd [1987] IRLR 503, although those had been defined as issues for the Tribunal to decide.

 

10.              In its conclusions the Employment Tribunal rejected the Claimant’s argument that the Lancet letter amounted to a protected disclosure and turned to the question of unfair dismissal.  It is important to quote certain sections of the Employment Tribunal’s Reasons.

 

11.              As regards the existing teaching allocation, it said the following (paragraph 73.1):

“73.1. It was unreasonable for Professor Evans to remove the Claimant’s existing teaching allocation in March 2013 whilst he was on sabbatical leave.  It was inappropriate and not in accordance with good industry practice.  There was no consultation with the Claimant in relation to removing this work.  Further we consider that the reallocation of his pre sabbatical teaching was inextricably linked to the position the Claimant adopted to the subsequent instructions he was given resulting in disciplinary action in respect of courses SBC100 and SEF032.  Specifically we conclude that the approach to the Claimant’s grievance was confused and unreasonably delayed and it was unreasonable for the Respondent to fail to deal with the Claimant’s grievance in this regard timelessly [sic], and in any event, in the context of the disciplinary action.”

 

12.              As regards the instruction to do the SEF032 course, it said the following (paragraph 73.4):

“73.4. … the instruction to do the SEF032 course was reasonable, both in respect of content and timing.  This was the basis for dismissal of the Claimant, not an alleged failure to read management emails.  We conclude that the Claimant’s reaction to Dr Michael’s instruction was unreasonable and constituted a failure to follow a reasonable management instruction, albeit in the context of the perception that his pre-sabbatical work teaching had been unfairly and unreasonably taken from him.”

 

13.              The Employment Tribunal found that dismissal was within the band of reasonable responses open to the Respondent in view of the “clear disregard of the reasonable management instruction”; that the Respondent had undertaken an appropriate investigation; that the disciplinary procedure was fair; and that the dismissal was genuinely for disregard of the instruction. 

 

14.              Why, then, did the Employment Tribunal find that the dismissal was unfair?  It set out its reasons in paragraph 75:

“75. Having said that, we conclude that the failure to consider the removal of the pre-sabbatical work as part and parcel of the investigatory process for the dismissal in respect of SEF032 rendered the dismissal unfair.  In particular the investigation carried out into whether the Claimant had committed an act of gross misconduct was considered in an unreasonably narrow context, given the allegations being made by the Claimant as part of the process.  The Claimant appealed against his dismissal and the appeal was considered fairly against the grounds of appeal presented.”

 

15.              Having found the dismissal to be unfair, the Employment Tribunal gave the following reasons for saying that the Claimant’s contribution to his dismissal was 100 per cent (paragraph 77):

“77. We then considered whether the Claimant caused or contributed to his dismissal and, if so, to what extent.  We conclude that the Claimant’s relationship with Professor Evans, even on the evidence of the Claimant, had broken down.  On the face of it, the Claimant could have chosen to leave and claim constructive dismissal as a result of the removal of his pre-sabbatical work and the failure to deal with it with this grievance [sic] within a reasonable time.  However, the Claimant did not opt for this route, choosing instead to disregard what we consider to be reasonable management instructions in relation to teaching requirements.  The Claimant was not entitled to do this and this especially in the context of the Respondent’s disciplinary procedures and his previous history of failing to comply with reasonable management instructions.  He clearly demonstrated that he was not prepared to be managed.  He had previously challenged management instructions; he did so on this occasion and faced the ultimate consequence of doing so.  In these circumstances we conclude that the Claimant contributed to his dismissal by 100%.”

 

16.              The Employment Tribunal did not deal specifically in its Reasons with the question of whether the basic award should be reduced, but its Judgment specifically said that no compensation was payable by the Respondent either in respect of the basic or the compensatory award.  The Employment Tribunal did not deal at all in its Reasons with any Polkey issue.

 

Statutory Background

17.              Compensation for unfair dismissal has two elements: a basic award and a compensatory award (see section 118 of the Employment Rights Act 1996).  The basic award is generally calculated by reference to length of service.  As regards the basic award, section 122(2) provides:

“(2) Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.”

 

18.              The compensatory award is estimated by reference to the loss sustained by a Claimant consequent upon dismissal.  Section 123(1) and (6) provides as follows:

“(1) Subject to the provisions of this section and sections 124, 124A and 126, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.

(6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”

 

 

 

Submissions

19.              The Claimant’s appeal was first considered at a Preliminary Hearing before HHJ Eady QC.  She allowed three grounds to proceed to a Full Hearing.  The first two grounds relate to the finding of 100 per cent contribution.  On behalf of the Claimant, Ms Anna Macey submits that the Employment Tribunal fell into error in this finding.  First, the Employment Tribunal drew no distinction between the test in section 122(2) and that in section 123(6) even though the statutory provisions are different.  She submits that the Employment Tribunal was obliged to consider the two types of award separately bearing in mind that the reductions need not necessarily be the same (see Rao v Civil Aviation Authority [1994] ICR 495 and Charles Robertson (Developments) Ltd v White and Anor [1995] ICR 349).  Secondly, the Employment Tribunal failed to consider how unusual and draconian it was to reduce compensation by 100 per cent (see Lemonious v Church Commissioners UKEAT/0253/12 and Steen v ASP Packaging Ltd [2014] ICR 56).  Thirdly, the Employment Tribunal failed to consider the extent to which the Claimant’s conduct caused or contributed to his dismissal.  It did not follow the steps set out in Steen.  Fourthly, the Employment Tribunal did not provide sufficient reasons for its decision.  It did not refer to the correct legal tests or explain why the Claimant was responsible for a 100 per cent reduction.

 

20.              On behalf of the Respondent, Mr Timothy Adkin answers these submissions in the following way.  First, the Employment Tribunal was not required to draw a distinction between section 122(2) and section 123(6) in the circumstances of this case, where the conduct all occurred prior to dismissal and was known by the Respondent at the time of the dismissal.  It is only in exceptional circumstances that the deduction from the basic award and compensatory award will differ (see RSPCA v Cruden [1986] IRLR 83).  Secondly, the Employment Tribunal was not bound to direct itself that it was unusual and draconian to impose a 100 per cent reduction.  It was only bound to follow the wording of the statute, which it had quoted at least in part.  Thirdly, the Employment Tribunal was not bound to follow the approach laid down in Steen so long as its Reasons made clear the points that it had taken into account.  Fourthly, the Employment Tribunal’s Reasons were sufficient.  The Claimant had “clearly demonstrated that he was not prepared to be managed”, and the Employment Tribunal had taken into account the previous history of disobedience by the Claimant to instructions for which he had been disciplined.

 

21.              The final ground permitted to go to a Full Hearing was a perversity ground.  In effect, the Employment Tribunal found that the Claimant had made a deliberate decision to disregard a management instruction.  This, Ms Macey submitted, was a perverse conclusion.  She submitted that the Claimant’s failure to respond lay in his understanding of academic freedom and the collegiate nature of decisions about teaching.

 

Discussion and Conclusions

22.              The Employment Appeal Tribunal is limited by Parliament to consideration of questions of law (see section 21(1) of the Employment Tribunals Act 1996 (“ETA”)).  Its task is to ensure that the Employment Tribunal has applied the law correctly, given sufficient reasons for its conclusions and reached findings of fact that were permissible on the evidence; that is to say, not perverse.  If the Employment Tribunal has met these standards, the Employment Appeal Tribunal has no power to intervene.  In particular, it has no power to intervene merely because it would itself have reached a different conclusion.

 

23.              I can deal immediately with the perversity ground.  Such grounds are rarely brought home, for reasons set out in Yeboah v Crofton [2002] IRLR 634 at paragraphs 93 to 95.  In this case, there was ample material on which the Employment Tribunal could conclude that the Claimant deliberately disregarded a management instruction.  The instruction had been set out in writing.  He had replied to it, saying that his decision had not changed.

 

24.              I turn then to the principal question in the appeal.  When considering whether an award of compensation for unfair dismissal should be reduced or extinguished by reason of an employee’s conduct the Employment Tribunal was required to apply section 122(2) and section 123(1) and (6).  The essential task has been summarised recently by the Employment Appeal Tribunal in Steen by Langstaff P.  After citing the relevant statutory provisions, Langstaff P continued as follows:

10. The two sections are subtly different.  The latter calls for a finding of causation.  Did the action which is mentioned in section 123(6) cause or contribute to the dismissal to any extent?  That question does not have to be addressed in dealing with any reduction in respect of the basic award.  The only question posed there is whether it is just and equitable to reduce or further reduce the amount of the basic award to any extent.  Both sections involve a consideration of what it is just and equitable to do.

11. The application of those sections to any question of compensation arising from a finding of unfair dismissal requires a tribunal to address the following: (1) it must identify the conduct which is said to give rise to possible contributory fault; (2) having identified that it must ask whether that conduct is blameworthy.

12. It should be noted in answering this second question that in unfair dismissal cases the focus of a tribunal on questions of liability is on the employer’s behaviour, centrally its reasons for dismissal.  It does not matter if the employer dismissed an employee for something which the employee did not actually do, so long as the employer genuinely thought that he had done so.  But the inquiry in respect of contributory fault is a different one.  The question is not what the employer did.  The focus is on what the employee did.  It is not on the employer’s assessment of how wrongful that act was; the answer depends what the employee actually did or failed to do, which is a matter of fact for the employment tribunal to establish and which, once established, it is for the employment tribunal to evaluate.  The tribunal is not constrained in the least when doing so by the employer’s view of the wrongfulness of the conduct.  It is the tribunal’s view alone which matters.

13. (3) The Tribunal must ask for the purposes of section 123(6) if the conduct which it has identified and which it considers blameworthy caused or contributed to the dismissal to any extent.  If it did not do so to any extent there can be no reduction on the footing of section 123(6), no matter how blameworthy in other respects the tribunal might think the conduct to have been.  If it did cause or contribute to the dismissal to any extent, then the tribunal moves to the next question, (4).

14. This, question (4), is to what extent the award should be reduced and to what extent it is just and equitable to reduce it.  A separate question arises in respect of section 122 where the tribunal has to ask whether it is just and equitable to reduce the amount of the basic award to any extent.  It is very likely, but not inevitable, that what a tribunal concludes is a just and equitable basis for the reduction of the compensatory award will also have the same or a similar effect in respect of the basic award, but it does not have to do so.

15. In any case therefore, a tribunal needs to make the findings in answer to questions (1), (2), (3) and (4) which we have set out above. …

17. It needs to be emphasised that a finding that a claimant is 100% responsible for his dismissal and that it would be just and equitable to reduce compensation by that amount, and a finding that for the same reasons presumably it would be just and equitable to reduce the amount of the basic award to nil, is an unusual finding.  It is however a permissible finding: see the decision of the Employment Appeal Tribunal in Lemonious … a judgment handed down on 27 March 2013 by a panel presided over by Langstaff J, President.

18. The fact that it is an exceptional course to take was recognised in Sulemanji v Toughened Glass Ltd [1979] ICR 799, where it appears that to adopt the exceptional course of reducing an award by 100% must be justified by facts and reasons set out in the decision.

21. The appeal tribunal commented:

“Further, even if the conduct were wholly responsible for the dismissal it might still not be just and equitable to reduce compensation to nil.  Though there might be cases where conduct is so egregious that that is the case, it calls for a spelling out by the tribunal of its reasons for taking what is undoubtedly a rare course.  In particular, it must not be the case that a tribunal should simply assume that because there is no other reason for the dismissal therefore 100% contributory fault is appropriate.  It may be the case but the percentage might still require to be moderated in the light of what is just and equitable.”

24. It is therefore all too often an error of law that a tribunal simply states its conclusion as to contributory fault and the appropriate deduction for it without dealing with the four matters which we have set out earlier in this decision.  We add for the comfort of tribunals that there is no need to address these matters at any greater length than is necessary to convey the essential reasoning. …”

 

25.              To this summary I would add only the following points which are applicable in this case.  Firstly, when considering section 123(1) and (6), the Employment Tribunal will often have to address both a Polkey issue (was there a chance - and if so, what chance - that the Claimant would have been dismissed fairly?) and a contributory conduct issue (should the award be extinguished or reduced because the Claimant’s actions caused or contributed to the dismissal?).  In principle, it should consider these separately, Polkey first and contributory conduct next (see Rao at page 501).  Approaching the matter this way is a valuable discipline.  It may assist an Employment Tribunal to analyse what difference, if any, unfairness in dismissal has made, and it can relate its conclusions on that matter to an employee’s misconduct when it assesses any contributory conduct.

 

26.              Secondly, a finding of 100 per cent contribution under section 123(6) is permissible only where the Claimant’s conduct was wholly responsible for the dismissal.  Even then, it does not follow that the finding must be 100 per cent (see Steen at paragraph 21).  But if the Employment Tribunal concludes that the Claimant’s conduct was not entirely responsible for the dismissal and that the Respondent shares responsibility for it, then a finding of 100 per cent contribution is not permissible.  This question of causation is not to be addressed in a narrow or technical manner.  The Employment Tribunal’s task is to apply standards of justice and fairness in reaching its conclusion.

 

27.              Against that background I turn to the Employment Tribunal’s reasoning on this question, which is found in paragraph 77.  It must immediately be said that the Employment Tribunal has not addressed the statutory provisions in any structured way as it should have done in the light of Rao and Steen.  It has not separately addressed the question of whether it was just and equitable to reduce the basic award and the question that arises under section 123(6).

 

28.              The first six lines of paragraph 77, far from supporting a 100 per cent deduction for contribution, would appear to point quite strongly against a 100 per cent deduction for contribution.  The Employment Tribunal found that the Respondent’s conduct in removing the whole of the Claimant’s pre-sabbatical work was such a serious breach of contract that, taken together with its failure to deal with his grievance in a reasonable time, it would have justified him in resigning and claiming constructive dismissal.  It had already found the dismissal to be unfair because the Respondent had failed to consider the removal of his pre-sabbatical work as part and parcel of the investigatory process for the dismissal.

 

29.              I cannot see how the Employment Tribunal has reconciled this serious criticism of the Respondent with its finding of 100 per cent contributory conduct, which depends at the least on a finding that the Claimant was wholly responsible for his own dismissal.  Presumably, the Employment Tribunal thought that if the Claimant’s complaints about the removal of pre-sabbatical work had been considered in the investigation process, the conclusion should have been that the Respondent was in serious breach of contract.  The Respondent would then have had to face up to this reality in the disciplinary and appeal hearing before deciding to dismiss the Claimant.  It is one thing to dismiss an employee for being obdurate about taking on fresh work when he is in the wrong, arguably another to do so when he has been the subject of a serious wrong that has not been corrected.

 

30.              The Employment Tribunal said in the last part of paragraph 77 that the Claimant was not entitled to disregard reasonable management instructions in relation to teaching requirements.  This would plainly justify a reduction in the award.  However, given the Employment Tribunal’s serious findings against the Respondent, I am not confident that the Employment Tribunal identified that in order to reduce the award by 100 per cent it had to be satisfied that the Claimant’s conduct alone was reasonable for his dismissal, and even then it had to ask whether it was just and equitable for the award to be extinguished.  This is why 100 per cent reductions in awards are rare and exceptional.  I see no indication in the Employment Tribunal’s Reasons that it has had these questions in mind and applied the law in this area.  For these reasons, I uphold the grounds of appeal that relate to the Employment Tribunal’s assessment of 100 per cent contribution.

 

31.              I would add that there is within paragraph 77 a problematic reference to the Claimant’s “previous history of failing to comply with reasonable management instructions”.  I shall say a little more of this later, but I reach my conclusion that the appeal must be upheld on these grounds independently of that consideration.

 

Disposal

32.              As a general rule, where an appeal is allowed the matter must be remitted to the Employment Tribunal.  It would therefore normally follow that I would remit the appeal to the Employment Tribunal to reconsider the question of contribution in the light of this Judgment.  To my mind, it would have been unrealistic to remit the question of contribution alone without making it clear that the Employment Tribunal would also have to deal with the question of Polkey.  This had been identified as an issue for the Employment Tribunal.  It arises out of the very same statutory provisions as those that the Employment Tribunal was applying, and it could not sensibly or properly have reconsidered the question of compensation without having regard both to Polkey and contributory fault.

 

33.              If I had been remitting the matter to an Employment Tribunal, I would have had to consider whether the remission would be to the same or to a differently constituted Employment Tribunal.  Not surprisingly, the parties took different positions on this.  In fact, however, the parties were in agreement that I should determine these issues.  I made it clear that the agreement must cover both Polkey and contributory conduct.  I made it clear that, subject to one point, to which I shall come in a moment, I would start from the findings of the Employment Tribunal.  Both parties consented to my determining the issues, and it is clear law, by virtue of section 35 of the Employment Tribunals Act 1996, I have power to do so provided that the parties are in agreement (see in particular the recent decision of the Court of Appeal in Jafri v Lincoln College [2014] ICR 920 at paragraph 47.  Again, I made it clear to the parties that this must inevitably the broadest of assessments, but they plainly take the view, with which I sympathise, that this is infinitely preferable to the taking of a decision on remission with which one party or the other will be dissatisfied followed by a hearing that would either be expensive in front of a fresh Tribunal or in circumstances that the Claimant would find difficult before the prior Tribunal.

 

34.              I turn, then, to the exercise that I have been asked to undertake.  I have already set out the key statutory provisions.  I direct myself in accordance with those provisions and with the principles set out in the cases to which I have referred. 

 

35.              I should, however, also briefly summarise the law relating to what is generally called the Polkey issue.  The question essentially is whether dismissal would still have occurred if the employer had acted fairly.  In a passage approved by the House of Lords in Polkey, Browne-Wilkinson J said:

“There is no need for an “all or nothing” decision.  If the Industrial Tribunal thinks there is a doubt whether or not the employee would have been dismissed, this element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment.”

 

36.              In Hill v Governing Body of Great Tey Primary School UKEAT/0237/12, a case that thoroughly deserves to be reported, Langstaff P said the following about a Polkey reduction:

“24. … First, the assessment of it is predictive: could the employer fairly have dismissed and, if so, what were the chances that the employer would have done so?  The chances may be at the extreme (certainty that it would have dismissed, or certainty it would not) though more usually will fall somewhere on a spectrum between these two extremes.  This is to recognise the uncertainties.  A Tribunal is not called upon to decide the question on balance.  It is not answering the question what it would have done if it were the employer: it is assessing the chances of what another person (the actual employer) would have done. … the Tribunal has to consider not a hypothetical fair employer, but has to assess the actions of the employer who is before the Tribunal, on the assumption that the employer would this time have acted fairly though it did not do so beforehand.” (Original emphasis)

 

37.              There are also well known propositions of law relating to Polkey in Software 2000 Ltd v Andrews [2007] IRLR 568.  The first four principles laid down in that case by Elias P, as he then was, continue in force.  Some of the subsequent principles depend upon statutory provisions that have been amended.

 

38.              In reaching my determination on these issues, I have started from the findings of the Employment Tribunal, with one probable exception.  In paragraph 77 of its Reasons the Employment Tribunal referred to a history of failing to comply with management instructions.  The Employment Tribunal had not made any findings of any such history except in respect of SBC100 and SEF032.  There had been an earlier issue, in 2010, which the Employment Tribunal mentioned in paragraph 37 of its Reasons, but it made no findings about that issue, and there were contentions between the parties about it.  The Employment Tribunal could not properly take that matter into account without findings.  As I have made clear to the parties, I leave that matter out of account.

 

39.              In accordance with Rao, I first approach the Polkey question.  If the Respondent had, as it should have done, considered the removal of pre-sabbatical work as part and parcel of the investigatory process, was there nevertheless still a chance that the Claimant would have been dismissed, and if so, how great was that chance?  I must approach this question on the basis that the Respondent would have acted fairly.  Given this assumption and given the Employment Tribunal’s strong findings and criticism relating to the Respondent’s conduct in removing pre-sabbatical work, I consider that it would have been incumbent on the Respondent, acting fairly, to have recognised that the Claimant had a legitimate sense of grievance about the removal of pre-sabbatical work.  That was the context for his intransigence in March, a time by which his grievance should have been determined.

 

40.              There was, put simply, fault on both sides.  There must, in those circumstances, have been a substantial chance that the Respondent would have dealt with the matter in a way short of dismissal.  Recognising the delay in the grievance procedure and recognising that there was fault on both sides, it is easy to see that the matter might have been addressed by a final written warning or even by some form of mediation.

 

41.              I must, however, recognise a chance that the Claimant could have been dismissed in any event.  Albeit in the context of an outstanding justified grievance, he had disobeyed a clear instruction at a time when he was subject to a written warning.  He had been told that teaching the new course was entirely without prejudice to the grievance concerning his pre-sabbatical work.  Once the justice of his grievance had been recognised, as it should have been, I think immediate dismissal would probably have been regarded as too severe a sanction, but I recognise a significant chance that the Claimant might have been dismissed in any event.  I must make a broad assessment of that chance.  I put it at 25 per cent.

 

42.              That is the starting point against which I assess the Claimant’s conduct.  I should first of all mention the different tests in section 122(2) and section 123(6).  I recognise that the tests differ.  However, once granted that I am not taking into account events in 2010, the material that bears upon sections 122 and 123 is similar.  I see no reason in the circumstances of this case to make a different reduction.

 

43.              I have no doubt that the Claimant was guilty of blameworthy conduct and that his blameworthy conduct contributed to his dismissal.  The blameworthy conduct is set out in the Employment Tribunal’s Decision, especially at paragraphs 45, 51, 59 to 62, 73.4 and 73.5.  These are the passages to which Mr Adkin asks me to have regard, and I have done so.  It is plain that this conduct contributed to the dismissal, the Employment Tribunal so found, and the dismissal letter also makes it plain.  Just as the Respondent could have avoided the dismissal by addressing the Claimant’s grievance in good time or at the very least as part of the disciplinary process, so the Claimant could have avoided the dismissal by obeying the instruction to teach the course under protest, especially since he had been told that it would not prejudice his grievance.  I have carefully borne in mind that I have already made a Polkey reduction and the severe strictures of the Employment Tribunal about the Respondent’s conduct.  I consider that it is just and equitable to reduce the Claimant’s compensation by a further one third for his blameworthy conduct.

 

44.              I have stood back and considered whether this produces a result under sections 122 and 123 that is just and equitable.  I consider that it does.  I consider that this is a case where there was fault on both sides.  Viewed in a commonsense way from the perspective of justice and fairness, I believe that the reductions that I have made do substantial justice between the parties.

 

45.              All questions of compensation, if it cannot be agreed, will be remitted to a freshly constituted Employment Tribunal.  There is no particular value in the present Tribunal dealing with questions of compensation, which do not to any significant extent overlap with its Reasons.  There is everything to be said for a fresh start on compensation should it be necessary.  I make it clear that the kind of Polkey reduction that I have made is quite different from such questions as, for example, whether the Claimant would at some point have moved elsewhere or retired.  These questions will be assessed as part of compensation.


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URL: http://www.bailii.org/uk/cases/UKEAT/2016/0265_15_1104.html