Was the tribunal right to make a 100% Polkey reduction to a compensatory award, as a redundancy dismissal was inevitable as a ‘pool of one’ could have been fairly applied to the Claimant?
No, held the EAT in Teixeira v Zaika Restaurants.
The Claimant was one of ten chefs at a restaurant, he was a ‘non-speciality chef’ with considerably less experience than others. The employer followed no procedure, dismissing the Claimant by telephone. The tribunal unsurprisingly found the dismissal to be unfair, but reduced the compensatory award to zero, on the basis that the Claimant’s dismissal was inevitable.
The EAT held it was wrong to hold that the Claimant’s dismissal was inevitable. Reviewing authorities on consultation, and the recent EAT decision in Mogane, the EAT noted:
"If a fair procedure would have taken some time there would be some compensation to cover the period that the consultation would have taken even if dismissal was inevitable.
"…It is also possible that consultation might have resulted in some change to the pool or even the outcome...".
The case was remitted to the same tribunal for reconsideration.
Thanks to Ed McFarlane for preparing this case summary.