Appeal No. UKEAT/0035/12/SM
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
23 April 2012
Before
HIS
HONOUR JUDGE SEROTA QC
MR A HARRIS
MR T STANWORTH
KINGSTON
TRANSPORT LTD T/A SUSSEX SKIPS APPELLANT
MR
M A SANDERS RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
UNFAIR DISMISSAL
Reason for dismissal including substantial other reason
Polkey deduction
The
Employment Tribunal misunderstood the basis of a Polkey reduction
and made no deduction as it concluded that were there to be a further dismissal
process the Respondent would again not conduct a fair procedure. The Employment
Tribunal held that the proper approach to a Polkey deduction was
to assume that the employer would have carried out a proper procedure.
At the parties’ invitation and with their agreement, and in order
to save the expense of a further hearing the Employment Appeal Tribunal
assessed the appropriate Polkey deduction.
HIS HONOUR JUDGE SEROTA
QC
Introduction
1.
This is an appeal by the Respondent against a decision of the Employment
Tribunal sitting in Brighton sent to the parties on 29 September 2011.
The Employment Judge was Employment Judge Wright, who sat with lay
members. In the decision appealed against the Employment Tribunal determined
it was not appropriate for there to be a “Polkey reduction” (Polkey v A E Dayton Services Ltd
[1987] IRLR 503) in the Claimant’s compensation, nor was it just and equitable
to reduce his compensation under section 123(6) of the Employment Rights Act 1996
(ERA) on the basis of contribution to his dismissal. The decision itself was a
further hearing directed by the Employment Appeal Tribunal. On
24 March 2010 the same Employment Tribunal, Employment Judge Wright
and lay members sitting at Brighton, determined that the dismissal of the
Claimant by the Respondent was unfair and went on to determine remedy; I shall
deal with these matters in so far as is relevant in greater detail later. The
Reasons were sent to the parties on 27 April 2010.
2.
At the remedy hearing the Employment Tribunal had declined or failed to
make either a Polkey reduction or a reduction under
section 123(6) ERA. The Respondent appealed to the Employment Appeal
Tribunal. On 28 March this Tribunal, presided over by HHJ Reid, who sat
with lay members, allowed the Respondent’s appeal on the grounds that the
Employment Tribunal’s findings in relation to the reasons for dismissal were
unclear and that it had not properly dealt with the case under Polkey
and under section 123(6) ERA. The case was remitted to the same
Employment Tribunal, which again, as I have already said, declined either to
make a Polkey reduction or a reduction under section 123(6)
ERA. It is convenient just briefly to refer at this point in time to
section 123(6):
“Where the tribunal finds 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.”
Factual background
3.
I now turn to deal with the factual background, which we have taken
largely from the two decisions of the Employment Tribunal. The Respondent is
engaged in the skip hire business. The Claimant on 15 January 2008
was employed by the Respondent as a heavy goods vehicle driver. We understand
that his job entailed the delivery and collection of skips. There do not seem to
have been any concerns about the Claimant’s driving until May 2009, when
his performance appeared to deteriorate significantly. Between May and
July 2009 there were a number of incidents, five in all, involving the
Claimant, four of which involved accidents; one of them, on 22 July 2009,
involved an allegation that he had delivered, rather than an empty skip, a skip
already containing rubbish, and there was an altercation, so it is said,
between the Claimant and the Respondent’s customer. The Claimant admitted, so
the Employment Tribunal found, responsibility for some three of those
accidents. This led to a disciplinary hearing, which took place on
6 August 2009, when the Respondent considered why the Claimant’s
performance levels had dropped off over the past few months. He was issued
with a written warning that was to remain on his file for a six‑month
period.
4.
On 21 September 2009 two incidents occurred, referred to as “numbers
six and seven”, with which we are particularly concerned today. The first
incident, number six, was when the Claimant’s lorry – we believe, its bumper –
was found to be damaged. The Respondent said this was caused by the Claimant.
The Claimant said this was not the case; when he collected the lorry at the
beginning of the shift, it had already been damaged, notwithstanding that this
had not been noted on the inspection report. Later in that day, while driving
his vehicle, he had an accident; the other vehicle involved was a grey Fiat
Punto. It is apparent that the place where the accident occurred was well
known to the Employment Tribunal, but what conclusions the Employment Tribunal
drew from that it is not possible for us to say, not having the first‑hand
knowledge that the Employment Tribunal had. In any event, it is clear that the
Claimant took the view that the accident was the responsibility of the driver
of the Punto. It is also clear that she had spoken to someone – we believe,
the yard manager – at the Respondent’s depot, and she blamed the Claimant. One
of the Respondent’s directors inspected the Claimant’s lorry and immediately
took the view that the Claimant had misled them as to how the accident occurred
and that the accident was the Claimant’s fault.
5.
The Respondent’s case then is that the Claimant became aggressive
towards a director, Mr Hudson, and Mr Hudson summarily dismissed him
for gross misconduct. The Claimant, on the other hand, denied that he had
behaved aggressively at all, and the Employment Tribunal accepted his case. We
note that the Respondent made no attempt to comply with the ACAS guidance as to
disciplinary proceedings; in particular, there was no investigation into the
accident, which took place in Shoreham Road, Hove. There was nothing before
the disciplinary hearing at all in relation to what the driver of the Punto may
have said, neither was there evidence from the person to whom she had spoken,
Mr Talbot, the site manager, who himself then relayed some information to
Mr Hudson.
6.
A dismissal letter followed. We do not have that dismissal letter. It
is, however, apparent from the decision of the Employment Tribunal that it
referred to the previous incidents and to the accident on 21 September,
the Respondent’s duty of care to other employees and the general public, and
the quality of the Claimant’s driving. The letter, which came from
Mr Hudson, confirmed his decision to summarily dismiss the Claimant for
these reasons and stated that due to the threat of violence by the Claimant
this left him with no choice but to dismiss the Claimant immediately on the
grounds of gross misconduct. We note at this point in time that there is no
reference in that letter to the first of the two incidents that took place on
21 September; that is, the damage to the bumper on the Claimant’s lorry.
7.
A somewhat different version of this letter was sent to the Jobcentre.
The Jobcentre were told this was a copy of the letter of dismissal; it was not,
but it made clear that the Claimant had been dismissed for gross misconduct.
Quite understandably, the Claimant now complains that this letter, sent to the
Jobcentre, has had a highly damaging effect on his prospects of re‑employment.
Later on, the Respondent’s insurers sought to enlist the support of the
Claimant to assist them in defending the claim. In fact, the Claimant did not
assist the insurers, and the insurers conceded liability to the driver of the
Punto.
8.
The Employment Tribunal concluded that the dismissal was unfair – there
is no appeal against that finding – and awarded him compensation in the total
sum of £17,852.50. The calculations are to be found at paragraph 59
onwards of the first decision of the Employment Tribunal. For present
purposes, we note that the Claimant was awarded in respect of loss of earnings
a sum equivalent to 31 weeks’ loss of earnings.
The Employment Tribunal decisions
9.
We now turn to the first decision of the Employment Tribunal. The
Employment Tribunal set out the facts; it noted that the Claimant had
consistently denied liability for the accident on 21 September, although
this was of course disputed by the driver of the Punto, and he told the
Respondent that he was not responsible. There was no investigation, and it is
apparent that during the disciplinary hearing there was no proper material
before Mr Hudson other than from the Claimant as to how the accident had
occurred. The Employment Tribunal at paragraph 22 set out the Respondent’s
evidence. Mr Hudson said that he called the Claimant into the unit and
asked him about the accident. The Claimant became angry. Mr Hudson
challenged the Claimant’s version of events, which Mr Hudson had received
from Mr Talbot and not first‑hand from the Claimant.
Mr Hudson’s evidence is that he based his understanding upon what
Scott Talbot had told him took place; Mr Hudson had not spoken
directly to the driver of the Fiat Punto. The Tribunal noted that
Mr Talbot did not give evidence, and therefore it did not hear
Mr Talbot’s version of events.
10.
Mr Hudson then went on to say that the Claimant had lunged at him
with his right fist clenched and attempted to hit him. The Claimant’s account
was quite different. The Claimant maintained that in fact it was
Mr Hudson who lost his temper. The Employment Tribunal heard from both
the Claimant and Mr Hudson. The Claimant’s evidence was Mr Hudson
did not give him an opportunity to provide him with an explanation for the
accident, and Mr Hudson believed the accident was the Claimant’s fault.
The Claimant said Mr Hudson was not interested in anything he had to say,
swore at him and fired him there and then. He denied having raised his hand,
raised his voice or lost his temper, and said he did not offer any sort of
violence. There is then some consideration of the circumstances in which the
letter of dismissal came to be written, with which we need not deal with, other
than to note that the version sent to the Jobcentre was not in fact a copy of
the letter as sent to the Claimant.
11.
Having referred to the law, the Employment Tribunal then at
paragraph 45 said this:
“45. The Tribunal prefers the evidence of the Claimant over that
of the Respondent for the following reasons.
46. The Respondent did not call Scott Talbot to give
evidence as to what he was told by the Claimant in respect of the accident on
the 21st September 2009, what damage Mr Talbot saw on
the lorry, or what Mr Talbot was told by the driver of the Fiat Punto. Nor did
it hear evidence from the Fiat Punto driver.”
12.
The Respondent’s submissions to us are that the conclusion of the
Tribunal in paragraph 45 that it preferred the Claimant’s evidence over
that of the Respondent only relates to the aggression, and does not relate to
the circumstances of the accident and any damage to the Claimant’s lorry. We
are not minded to agree. It is clear paragraph 46 and also
paragraph 50, which relates to photographs referred to Mr Talbot that
were not in fact produced, again were in relation to the accident. It seems to
us that the Employment Tribunal would have had no reason to refer to material
relating to the circumstances of the accident if when it stated it preferred
the Claimant’s evidence to that of the Respondent it was not including in that
evidence the evidence that related to the accident.
13.
The Employment Tribunal at paragraph 53 concluded that the
Respondent’s summary dismissal of the Claimant was unfair because the
Respondent did not act reasonably in accordance with section 98(4)(a), and
the suspicion of misconduct without a full investigation of the position did
not justify its decision to summarily dismiss the Claimant:
“The Tribunal finds that as it prefers the Claimant’s evidence
regarding what took place during the alleged altercation and finds there were
no circumstances which rendered it an ‘exceptional situation’ allowing the
Respondent to summarily dismiss the Claimant without going through any form of
disciplinary procedure.”
14.
This passage is relied upon by the Respondent as suggesting that what
was said earlier in paragraph 45 was limited to the altercation. We have
already indicated why we do not agree with this submission.
15.
At paragraph 54 the Employment Tribunal also found the Respondent’s
explanation for the circumstances in which a different letter was sent to the
Jobcentre from that sent to the Claimant was not credible. At
paragraph 55 they continued:
“55. The Tribunal also took into account what it described as
the inconsistency of the Respondent wanting the Claimant to provide a statement
to its insurers giving his version of events (i.e. that the collision with the
Fiat Punto was not his fault) in order that they could dispute the claim. This
contradicts the view the Respondent took on the late afternoon on 21st September 2009
[…] which indicated that it was the Claimant’s fault and also undermines the
Respondent’s credibility.
56. The Claimant had made the same statement consistently
throughout the case that the accident with the Fiat Punto on
21 September 2009 was not his fault. This is contrasted by the
Respondent’s case, that it found, without holding an investigation or following
any sort of disciplinary process that the accident on the 21st September
2009 was the Claimant’s fault (paragraph 9 of Mr Hudson’s
statement). Yet the Respondent wanted the Claimant to provide assistance in
defending the claim brought by the driver of the Fiat Punto. If the Respondent
was defending the Fiat Punto driver’s claim, the Tribunal finds it must follow
that the Respondent was now saying in November 2009 and March 2010
[…] that the blame for the accident lay with the driver of the Fiat Punto and
not the Claimant.”
16.
The Tribunal went on to consider remedy. It was satisfied that there
was nothing in the point that the Claimant had failed to mitigate his loss. It
found that the Respondent had not discharged the burden of demonstrating that
was the case. The Tribunal found that after the summary dismissal for violent
conduct and with a break in his driving history the Claimant had not failed to
mitigate his loss. It noted the admitted failure by the Respondent to follow
the ACAS Code of Practice on disciplinary and grievance procedures and
therefore uplifted the award by 25 per cent. The Claimant had also made a
claim in respect of the failure to provide him with a written statement of his
terms and conditions of employment in accordance with section 1 of the
ERA; this complaint was upheld. In total, the Claimant was awarded the sum of
£17,852.50, of which 31 weeks’ loss of wages was included.
17.
There was no discussion in relation to a Polkey deduction
or contributory fault. The Respondent appealed to the Employment Appeal
Tribunal; I have already referred to the Judgment given by Judge Reid on
28 March. It was unclear what the Employment Tribunal found was the
reason for the Claimant’s dismissal. The Employment Tribunal had failed to
deal with contribution under section 123 or Polkey. The
Employment Appeal Tribunal noted during the course of its Judgment that there
was an incident on 21 September involving the Fiat Punto, but it was not
necessary for the purposes of the hearing before the Employment Appeal Tribunal
on that occasion to make any findings or attempt to make any findings about
whose fault that may have been.
18.
The matter was remitted to the Employment Tribunal to reconsider matters
relating to Polkey and section 123. In the second decision
of the Employment Tribunal, which, as we have said, was sent to the parties on
29 September 2011, the Employment Tribunal at
paragraphs 12 and 13 made clear that it was not concerned with
the first five of the seven incidents relied upon by the Respondent because
they did not affect the issue the Tribunal had to decide. The Tribunal found
there was a break in causation between the incidents in May and July 2009
and the incident on 21 September 2009. By a letter of 3
August 2009 the Claimant was invited to a disciplinary hearing in respect
of those incidents; that letter informed the Claimant of the nature of the
meeting, stated it was the Respondent’s intention to issue a formal warning,
informed the Claimant of his right of representation, and stated to the
Claimant he had the right to appeal against any decision made. The Claimant
was then issued with a written warning, which, as we have said, was for six
months only. The Respondent had concluded its dealings in respect of those
incidents, albeit the written warning was to stay on file for six months. We
just note in passing that paragraph 13 reveals that the Respondent was
aware of and well able to comply with the ACAS Code of Practice.
19.
The Employment Tribunal then at paragraph 17 noted the Respondent’s
case that Polkey applied as there was potentially a fair reason
for dismissal, namely the Claimant’s conduct: the collision with the Fiat Punto.
It appears therefore that the case put to the Employment Tribunal was that Polkey
applied because of the Fiat Punto rather than the Claimant’s previous driving
history. The Tribunal found the Claimant did not act in the manner alleged by
the Respondent and his dismissal was unfair, and it then had this to say
(paragraph 16):
“It follows that the reason for the Claimant’s dismissal was the
incident referred to at paragraph 18 – the collision between the Claimant
and the Fiat Punto.”
20.
This point is picked up again in paragraph 17:
“The Respondent’s case is that Polkey applies as there
was potentially a fair reason for dismissal, namely the Claimant’s conduct –
the collision with the Fiat Punto. It is the Respondent’s case it would have,
on the balance of probabilities, fairly dismissed the Claimant within 1‑2
weeks, thereby limiting his losses to that period.”
21.
The Employment Tribunal then relied upon a letter from the Claimant
pointing out the ACAS Code of Practice in a grievance that he had raised in
disciplinary proceedings, but this had simply been ignored. The Employment
Tribunal, revisiting the evidence it had heard in March 2010, concluded
that the Respondent had shown a potentially fair reason for dismissal, but on
the balance of probabilities, based on the evidence it heard, the Respondent
would not have followed a fair procedure and therefore the Respondent’s Polkey
argument failed. At paragraph 21 the Employment Tribunal again criticised
the manner of the Claimant’s dismissal and on the balance of probabilities
found:
“[…] due to an inconsistent approach by the Respondent, the only
conclusion that it could draw was that the Respondent did have the opportunity
to follow a fair procedure yet it did not do so. The Respondent’s Polkey
argument therefore fails. The Tribunal’s findings undermine the Respondent’s
submission that it would have conducted a fair investigation and the
inconsistent approach taken by the Respondent to the issue of liability in
respect of the incident with the Fiat Punto, further undermined the
Respondent’s contention that it ‘would have’ followed a fair procedure
resulting in a fair dismissal.”
22.
The Employment Tribunal then went on to consider the question of contributory
fault. It found that the Respondent intended to terminate the Claimant’s
employment at some stage; indeed, it had made an offer to terminate his
employment in August 2009, which in fact came to nothing. “The Claimant
denied any liability for the incident with the Fiat Punto […] yet, this was
never properly investigated by the Respondent.” It noted that it had found
that the Respondent accepted the Claimant’s statement that the collision with
the Fiat Punto was not his fault in order to dispute the claim by the driver of
the Punto, yet the Respondent dismissed the Claimant unfairly as a result of
that collision. At paragraph 24 they continued:
“The Respondent’s conduct in accepting the Claimant’s version of
events in order to defend the claim by the driver of the Fiat Punto yet relying
upon its contention (without having conducted any form of investigation) that
the Claimant was liable and therefore his conduct contributed to his
dismissal. The Tribunal has revisited Section 123(6) and consulted the
evidence which was presented to it at the hearing on 24 March 2010
and reconfirms its decision to exercise its discretion not to reduce the
compensatory award as it would not be just and equitable to do so due to the
findings [it had made]. It is not now open to the Respondent to argue that the
Claimant’s conduct contributed to his dismissal when it has failed to follow
basic principles of natural justice by not allowing the Claimant to explain his
position at a hearing and the Respondent cannot now argue that the Claimant’s
conduct caused or contributed to his dismissal.”
Notice of Appeal and Respondent’s submissions
23.
We now turn to the Notice of Appeal and the Respondent’s submissions.
Firstly, it was submitted that the Employment Tribunal was wrong to find that
it followed from the finding that the Claimant was not dismissed for the reason
given by the Respondent – that is, his aggression – that he must have been
dismissed solely by reason of the accident with the Fiat Punto. When finding
that the Claimant had been dismissed by reason of the accident with the Fiat
Punto, it did not address the issue of whether he had been dismissed as a
result of that accident or that accident cumulatively with the other incidents,
including the incident relating to the altercation with a customer.
24.
Secondly, it is said that the Employment Tribunal misapplied the
principles set out in Polkey. It failed to address relevant
evidence – that is, the Claimant’s past history – and the possibility that
because of his recent driving record it was likely that he would give cause for
further complaint leading to his dismissal within a short period of time; as I
have said, the Respondent was seeking a finding that would have occurred within
two weeks. The Employment Tribunal, it was submitted, was bound to consider
the position as though in fact there had been a fair procedure followed and to
consider whether and for how long the Claimant’s employment would have
continued. The Employment Tribunal was bound to approach a Polkey
question on the basis that the employer would act fairly and reasonably. Our
attention was drawn by Mr Pilgerstorfer, who appears on behalf of the
Respondent, to the Judgment of Elias J, as he then was, in Software 2000 Ltd v Andrews
[2007] ICR 825. Elias J at paragraph 43 referred to the decision in Gover v Propertycare Ltd
[2006] EWCA Civ 286, in which the Employment Tribunal had found there were
fundamental failings in the way in which the employer sought to bring about
changes in employment contracts. This had led to constructive dismissal and
the finding of unfair dismissal by the Tribunal, but it was held that even if
proper consultation had occurred, the employees would not have accepted the
fundamental changes that the employer was seeking to introduce into their
contracts and that all they had lost was the period during which consultation
would have occurred, which the Tribunal found to be four months. In the course
of giving judgement, Buxton LJ in turn cited with approval a passage in King v Eaton Ltd (No. 2)
[1988] IRLR 686 and added the fact that the issue was a matter of impression
and judgment to the Tribunal:
“22. […] indicates very strongly that an appellate court should
tread very warily when it is being asked to substitute its own impression and
judgement for that of the Tribunal.”
25.
He also observed that the Polkey approach, assessing what
would have happened had the dismissal been fair, was wholly consistent with the
principle of assessing loss flowing from the dismissal on a just and equitable
basis, which is the principle underlying section 123:
“14. [These] should be a matter for the common sense, practical
experience and sense of justice of the ET sitting as an industrial jury.”
26.
He also approved the way in which HHJ McMullen QC had
described the process in the EAT in that case where he had said that the
Employment Tribunal’s task was:
“[…] to construct, from evidence not speculation, a framework
which is a working hypothesis about what would have occurred had the [employer]
behaved differently and fairly.”
27.
The third line of submissions made by Mr Pilgerstorfer was that the
Employment Tribunal had fallen into error when it looked at the Respondent’s
conduct as being relevant to the issue when it should have looked solely at the
Claimant’s responsibility. It was only the Claimant’s conduct, not the
Respondent’s, that was relevant to the issue of contributory fault. Further,
regarding the finding, which we have read, that as the Respondent had acted in
breach of natural justice it was somehow precluded from arguing that the
Claimant’s conduct contributed to his dismissal, it is said that this was
plainly wrong (see the Respondent’s skeleton argument, paragraph 31(c)).
Further, conduct that can result in a reduction for contribution can relate to
matters that are unrelated to the principal reason for the dismissal. Our
attention was drawn to the decision of Parker Foundry v Slack
[1992] IRLR 11.
The Claimant’s submissions
28.
The Claimant prefaced his submissions by drawing attention to the fact
that he was appearing in person. He had not been able to enlist the support of
ELAAS by reason of a lack of communication with them, and he accepted that
legal arguments in this case were over his head, but he did submit that the
Employment Tribunal had been correct to reject the relevance of the matters
that had occurred and had been subsumed in the written warning. He submitted
the Employment Tribunal had found he was not responsible for the accident with
the Punto and the Employment Tribunal was entitled to find that the Employment
Tribunal would never have followed a fair procedure. He went on to tell us
that since his dismissal he had driven over 100,000 miles without any issue as
to his driving; we note this, but of course it was not in evidence, and we say
no more about it, other than the fact that we have noted what he said.
29.
Also, Mr Sanders submitted to us he only accepted responsibility
for two out of the seven incidents, not four; again, we can only go by what the
Employment Tribunal found, and that is that he had accepted responsibility for
four.
Conclusions
30.
In our view, which we have already mentioned, when the Employment
Tribunal said it was accepting the Claimant’s evidence it was not restricting
this finding to the allegations made against him of aggression, but it included
his evidence as to the circumstances of the accident in Shoreham Road on
21 September. So far as we can tell, no findings or material were raised
in relation to incident number six; that is – the first allegation of damage on
21 September – either having been raised at the disciplinary hearing or
during the course of the Employment Tribunal hearing. Certainly, no findings
were made by the Employment Tribunal. It follows that although Polkey
issues may still be live, it is difficult to see how the Claimant could be said
to have contributed towards his dismissal by his involvement in an accident
that was not his fault. In those circumstances, as it seems to us, if the
reason for which he was dismissed was not his fault, it seems wholly wrong that
the Respondent should be allowed to rely in reduction of his claim upon matters
that had already formed the subject of a disciplinary hearing and a written
warning.
31.
So far as the law is concerned, we accept the Respondent’s submissions,
firstly, that the Employment Tribunal was wrong in its approach to Polkey.
The Employment Tribunal’s decision was inconsistent with authorities to which
we have referred that in assessing a Polkey reduction it must be
assumed that fair procedures were put in place and carried out by the employer.
Secondly, we accept that the Employment Tribunal’s approach to contribution was
flawed in so far as it looked at the Respondent’s conduct as well as the
Claimant’s rather than particularly concentrating on the Claimant’s conduct.
It was also wrong, as a matter of law, for the Employment Tribunal to find that
the Respondent was somehow precluded from raising arguments as to contribution
by reason of its own conduct. There is no estoppel or anything like that in
this kind of case.
32.
The Respondent’s difficulty in this case is with the facts: the finding
that the Claimant was not at fault in relation to the accident in Shoreham
Road, and the fact that there are no findings in relation to an earlier
incident on that day (although it does appear that the Claimant’s evidence on
this, that it was not his fault, was accepted). This leaves only the Polkey
point. Both parties want us to deal with this matter rather than go to the
expense of a further remission, which would in the circumstances possibly
require there to be a new Employment Tribunal, with added expense and delay.
There is some authority for the proposition that where an Employment Appeal
Tribunal is in as good a position as the Employment Tribunal to decide
something it can go on to do so without sending the case back; see Buckland v Bournemouth University
Higher Education Corporation [2010] ICR 908 in the Judgment
of Jacob LJ. In all the circumstances, and having regard to the parties’
agreement – and we stress the importance of that – and also the question of
proportionality, we are anxious to avoid further delay and further expense to
the parties. We are prepared to undertake the task of assessing an appropriate
Polkey deduction.
33.
It has to be said that the Claimant’s driving record was not good, and
it appears to have been deteriorating. We think it is likely that he would
have been involved in further accident for which he was responsible possibly
within and possibly without the balance of the six‑month warning. Having
regard to this, and also having regard to the fact that the period must assume
a fair procedure on the part of the Respondent, which would require the
investigation of any further allegation of misconduct, the opportunity for
there to be an appeal and compliance with ACAS directions that would preclude
disciplinary action until after a proper investigation – the Claimant should
have been advised of his right to be accompanied, and he should be provided
with provision of witness statements and told of his rights of appeal, and an
appeal made available – on the balance of probabilities, and doing the best we
can, we consider that it is likely his employment would have terminated
approximately 6 months after the date of his actual dismissal; i.e. after some
26 weeks. It follows, therefore, that the award should be adjusted to that
extent.
34.
To that extent, we allow the appeal; apart from that, the grounds of appeal
are dismissed.
