Veitch Penny LLP - Exeter | Crediton, Devon

Case

Evans v Capio Healthcare (UK) Ltd
Employment Appeal Tribunal - (16 August 2004)

Issues

(1) Unfair dismissal
(2) Redundancy
(3) Alternative employment

Facts

The Applicant had been employed by the Respondent as a Personnel Manager from 23rd May 1994. She was dismissed on 31st January 2003 and received a payment in lieu of notice. Originally, the Applicant had been employed at the Florence Nightingale Hospital in North London and this hospital together with a number of others were taken over by the Respondent in 2001.

The new company quickly produced a human resources strategy for the future following an internal review. A number of meetings were set up and advertisements placed internally and externally for Human Resources professionals.

The Applicant applied for the post of Group Human Resources Manager. She was unsuccessful. She had asked for reasons for her failure and, in error, she received a version of the review document which contained negative comments and proposals for the shutting down of the Human Resources Department at the hospital.

The Applicant then raised a number of formal grievances against various members of the company. The grievances were heard and rejected. After a number of meetings the Applicant advised that she was to be made redundant.

She made a claim of unfair dismissal to which the Respondent contended that she had been dismissed for reasons of redundancy and that the handling of that redundancy had been fair.

The Tribunal found that the Applicant had been unfairly dismissed. A basic award was not awarded presumably because she had received a redundancy payment unaffected by statutory capping. With respect to a compensatory award, the Tribunal applied the principle laid down in the case of Polkey –v- A E Dayton Services Ltd and in doing so reduced the compensation that she would be awarded to nil. They had formed the view that whilst she had been unfairly dismissed, on the balance of probabilities, the Applicant would have been made redundant in any event. The principle in Polkey states that when a dismissal is made unfair by reasons of procedural defects, a Tribunal may find unfair dismissal and to reduce compensation by a percentage to reflect the chance that the dismissal would have occurred even if the procedure had been carried out correctly.

The Applicant appealed the decision in respect of remedy.

Decision

The Employment Appeal Tribunal had to consider the principle outline in the case of Polkey.

The EAT upheld the Applicant’s appeal. They confirmed that the principle in Polkey had been applied incorrectly and it was inappropriate for a reduction in compensation to have been made.

Comments

The EAT confirmed that Polkey did not apply in this case. Whilst the Tribunal did have the power to make a deduction, it did not have to be used. No reduction should have been made. The facts pointed to the proposed alternative employment offered to the Applicant as being a sham.