[Thanks to John Cook of SAS Daniels LLP for preparing this case summary]
Can an employee be reinstated where the tribunal has made a Polkey deduction?
Yes, says the President of the EAT in Arriva London v Eleftheriou.
The Claimant was employed as a bus driver and was dismissed for capability reasons after having an accident at home that prevented him from driving. At the date of hearing the employee had fully recovered and after finding the dismissal procedurally unfair, the tribunal ordered reinstatement but reduced the compensation payable between dismissal and reinstatement by 60% after finding that he would have been 60% likely to have been fairly dismissed given time and proper procedures. The Respondent appealed.
The EAT held that there was nothing to prevent an order for reinstatement where there had also been a Polkey deduction. The Employment Rights Act is prescriptive as to the order in which a tribunal is obliged to consider remedy. It must consider reinstatement before it considers compensation. In accordance with section 116 the tribunal must consider whether the complainant wishes to be reinstated, whether it is practicable for the employer to comply with an order for reinstatement, and, where the complainant caused or contributed to some extent to the dismissal, whether it will be just to order his reinstatement.
The EAT did not regard a conclusion as to a percentage deduction - reached in respect of the different exercise, which is the assessment of compensation - as having any relevance to the prior decision whether reinstatement should take place or not. However, under section 116 a tribunal can still take into account matters which may themselves lead to a conclusion of a Polkey deduction. For instance, in a conduct dismissal held to be unfair on procedural grounds it is likely to be highly relevant to know what the conduct was. In a capability dismissal it may be highly relevant to know the nature of the illness concerned. If the reason were "some other substantial reason" then, again, a tribunal would no doubt wish to have regard to some of the underlying facts.