The Employment Appeal Tribunal has decided that an employment tribunal was wrong to make a 100% reduction to a compensatory award (applying the principles set out in Polkey v AE Dayton Services Ltd [1987] IRLR 503) in a successful claim for unfair dismissal.
Ms Pal was employed by Accenture (UK) Ltd in 2009. In September and November 2018, she had two periods of absence relating to endometriosis, including surgery. In November 2018 and June 2019, Accenture informed Ms Pal that her performance was rated as “not progressing” under its “progression-based performance management model”, under which employees faced dismissal unless they demonstrated readiness for promotion. Ms Pal was dismissed on 3 July 2019. She brought claims for unfair dismissal and discrimination arising from disability.
An employment tribunal held that the dismissal was unfair because Accenture had breached its Disciplinary and Appeals Policy. However, it applied a 100% Polkey reduction to the compensatory award on the basis that, if Accenture had used a policy which reflected its otherwise reasonable approach, Ms Pal would have been dismissed fairly at the same time in any event. It also rejected her discrimination claim. Ms Pal appealed to the EAT.
The EAT upheld the appeal. The tribunal had erred in its Polkey assessment by assuming that Accenture would have introduced a new policy mirroring the process it had actually used, instead of analysing whether Accenture would have fairly dismissed had it complied with its existing policy. This required consideration of whether Accenture would have applied its progression-based performance model.
The EAT questioned whether dismissal under this model could be potentially fair for capability, as it may not relate to the work Ms Pal was employed to do under the contract, but rather to what she would be required to do if promoted. Alternatively, the dismissal could fall within “some other substantial reason”, but this would still require consideration of whether the reason justified the dismissal of someone in Ms Pal’s “position”, as defined in section 235 of the Employment Rights Act 1996.
The tribunal had also failed to properly analyse whether Ms Pal’s endometriosis constituted a disability under the Equality Act 2010. Consequently, it did not properly assess whether Accenture had knowledge or constructive knowledge of disability, or whether the dismissal was justified.
The claim was remitted to a fresh tribunal for reconsideration of all issues.
