The Court of Appeal has handed down an important decision emphasising the wide discretion that a tribunal has to make a Polkey reduction. The case, Gover v PropertyCare Limited is authority for the following propositions:
- a Polkey reduction (i.e. that a dismissal would have occurred, or probably occurred, in any event if a fair procedure had been followed) is a matter for the impression and judgment of the tribunal. An appellate court should not interfere lightly with the tribunal's assessment (para. 22)
- this is part of the overriding obligation to award compensation that is 'just and equitable'. Whilst not saying so in terms, King v Eaton (no. 2) (that tribunals should only 'reconstruct' the world as it would have been if it can be done reasonably easily) is thrown into considerable doubt (para. 19)
- more generally, the Court of Appeal cast doubt on the long-standing assumption that appeals to the Court of Appeal involve a review of the employment tribunal's reasoning, rather than that of the EAT (see para. 8)
This decision is quite complicated, but important nevertheless.
Gover v PropertyCare Ltd.
[Thanks to John Bowers QC of Littleton Chambers, and Martin Budworth of Kings Chambers (Counsel for employer and employee respectively), for telling me this decision was published]