Ratio Decidendi
An employer dismissing an employee for redundancy or misconduct cannot escape a finding of unfair dismissal by arguing that following a fair procedure would have made no difference to the outcome. Whether the procedure followed was fair is to be assessed by what the employer did, not by what the result would have been had the employer done otherwise. The 'no difference' rule — that procedural failures are irrelevant if the outcome would have been the same — was overruled. However, if on the evidence the tribunal concludes that the employee would or might have been dismissed even if a fair procedure had been followed, it may reduce compensation to reflect that chance, and may even reduce it to nil.
তথ্য
Mr Polkey was one of four van drivers employed by AE Dayton Services Ltd (a subsidiary of United Biscuits). The company decided to replace its van drivers with a smaller number of area representatives and to make the existing drivers redundant. The manager responsible gave no warning to the employees, conducted no consultation, and made no enquiry whether alternative employment was available. Mr Polkey was told he was redundant and handed a letter of dismissal on the spot. He claimed unfair dismissal. The employment tribunal and Employment Appeal Tribunal held the dismissal fair because consultation would have made no difference. The Court of Appeal upheld this, applying the then-prevailing 'British Labour Pump' principle.
রায়ের সারসংক্ষেপ
The House of Lords overruled the Court of Appeal's decision and the British Labour Pump Co Ltd v Byrne [1979] ICR 347 approach. Lords Bridge, Mackay, Ackner, Goff, and Griffiths all delivered speeches. Lord Bridge gave the principal speech. He held that in assessing whether an employer had acted reasonably in treating redundancy as a sufficient reason for dismissal, the employment tribunal must ask whether the employer had acted as a reasonable employer. A reasonable employer would ordinarily consult employees before making them redundant, consider whether alternative employment was available, and give warnings. A failure to do these things made the dismissal procedurally unfair, and the fact that following the procedure might have made no difference did not cure the unfairness. However, Lord Bridge also recognised that if the tribunal concluded on the facts that there was a real chance the employee would or might have been dismissed in any event had fair procedure been followed, compensation could be reduced proportionately. This became known as the 'Polkey deduction'. Lord Mackay emphasised that the tribunal must consider the 'range of reasonable responses' — only exceptional situations justified bypassing fair procedures.
মূল উদ্ধৃতি
"An employer having prima facie grounds to dismiss will in many cases not be acting reasonably in treating those grounds as a sufficient reason for dismissal unless and until he has taken the steps, conveniently classified in most of the authorities as 'procedural', which are necessary in the circumstances of the case to justify that course of action."
— Lord Bridge at 364
"If the employer could reasonably have concluded in the light of the circumstances known to him at the time of dismissal that consultation or warning would be utterly useless he might well act reasonably even if he did not observe the provisions of the code."
— Lord Bridge at 364
"The tribunal may reduce the award of compensation to such extent as it considers just and equitable having regard to all the circumstances, including the conduct of the employer and the employee."
— Lord Bridge at 366 (paraphrasing ERA 1996 s.123)
পরবর্তী ব্যবহার
Universally followed as the authority on procedural fairness in unfair dismissal cases. The 'Polkey deduction' — a percentage reduction in compensation to reflect the probability of fair dismissal — is routinely applied in employment tribunal remedy hearings.
Applied in Software 2000 Ltd v Andrews [2007] ICR 825, where the EAT gave detailed guidance on how to calculate the Polkey reduction when evidence of what would have happened is limited or speculative.
Distinguished in cases where the employer could establish that a fair procedure would have been 'utterly useless' — a narrow exception recognised by Lord Bridge himself, applied in cases of wholly exceptional urgency or misconduct.
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