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This case concerns the application of the Polkey rule to cases of unfair dismissal. The Polkey rule deals with the issue of whether an employee would have been dismissed anyway but for the procedural failings in their dismissal (rendering it unfair).

The facts in Cartwright v Kings College London

Mr Cartwright (“the Claimant”) commenced employment with Kings College London (“the Respondent”) in 2000 and by 2005 he had achieved the status of a permanent employee teaching rehabilitation in the Physiotherapy department.

On 12 June 2007 the Claimant was informed that there was a possibility that his post may become redundant as there was a lack of student interest in a proposed new teaching course.

The Claimant was in fact made redundant on 31 January 2008. The Claimant subsequently submitted a complaint of unfair redundancy dismissal at the Employment Tribunal. The Employment Tribunal found that the Claimant had been fairly dismissed. The Court of Appeal overturned this finding on the ground of procedural fairness alone and remitted the matter to the Employment Tribunal for remedy to be dealt with.

The Tribunal, considering the remitted issue of remedy, concluded that it would be appropriate to award the Claimant a sum that would cover the extended period that it would have taken to deal with his claim in a procedurally fair manner. The Tribunal considered that a period of two weeks was an appropriate period and the Claimant was therefore awarded two weeks’ pay.

The law relating to unfair dismissal and Polkey reductions

Employees have, under s.94 of the Employment Rights Act 1996, the right not to be unfairly dismissed from their employment. Broadly, there are two elements to the fairness of a dismissal – the substantive fairness and the procedural fairness. The substantive fairness of a dismissal relates to whether the employer has made a decision which was within the range of reasonable responses in dismissing the employee. The procedural fairness of a dismissal relates to whether the dismissal has been carried out in a procedurally fair manner (i.e. whether the dismissal is consistent with similar past decisions, whether the employee has been given an opportunity to appeal etc.).

Should the employee succeed in showing liability for unfair dismissal (i.e. that the dismissal was substantially and/or procedurally unfair) then they are entitled to be awarded compensation for the losses that they’ve sustained as a result. However, the employee’s compensation can be reduced through a variety of mechanisms, one of these being the application of the Polkey rule.

The Polkey rule emanates from the case of Polkey v A E Dayton Services Ltd and states, broadly, that if a dismissal is procedurally unfair but not substantively unfair then the compensatory award should be reduced by the appropriate percentage to reflect the possibility that the employee would have been dismissed but for the procedural unfairness. There are a number of ways that the Employment Tribunal can apply such a reduction – either to 100% of the compensatory award or a lower percentage. The Employment Tribunal could also choose to award the employee compensation for the extra period it would have taken to have carried out a fair procedure.

The Employment Appeal Tribunal’s decision in Cartwright v Kings College London

The Employment Appeal Tribunal dismissed the Claimant’s appeal against the Polkey reduction that the Employment Tribunal had applied, considering that the Employment Tribunal had made no error of law.

Our specialist employment lawyers’ thoughts on Cartwright v Kings College London

This case shows that Claimants should be aware that awards of compensation in the Employment Tribunal can be substantially reduced through a number of means, such as contributory fault, a failure to mitigate or (as in this case) the application of the Polkey rule.

About Chris Hadrill

Chris is a specialist employment lawyer at Redmans. He specialises in contentious and non-contentious employment matters, including breach of contract claims, compromise agreements and Employment Tribunal cases. He writes on employment law matters on a variety of websites, including Direct 2 Lawyers, Lawontheweb.co.uk, LegalVoice, the Justice Gap and his own blog. Contact Chris by emailing him at chadrill@redmans.co.uk

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