[Thanks to Andrew Smith of Matrix Chambers for preparing this case summary]
The latter, says the EAT in Hill v Governing Body of Great Tey Primary School.
Following a finding that the Claimant's dismissal was procedurally unfair, the tribunal assessed remedy on the basis that the Claimant's employment would have terminated in any event two months later (had a proper procedure been followed). An 80% reduction on account of contributory fault was also applied, leaving the claimant with the meagre sum of £49.99 as her compensatory award.
In the EAT's view, the tribunal's conclusion on the Polkey issue indicated that it had asked whether if following a fair procedure the respondent had decided to dismiss, such a decision would have been upheld as fair by a tribunal (as falling "within the band"). That was the wrong approach. When applying Polkey, a tribunal is required to undertake a predictive approach as to the likelihood of that particular employer fairly dismissing the Claimant. The issue is not whether a hypothetical fair employer would / could have done so.
The EAT further emphasised that a Polkey assessment requires a consideration of competing factors, including those which weigh in the employee's favour (e.g. lengthy service, past performance and an unblemished disciplinary record).
The tribunal had also erred in its approach to contributory fault. Amongst other matters, it had adopted a "homespun and inaccurate reflection" of Article 10 (the right to freedom of expression), when considering the blameworthiness of the Claimant's conduct. The EAT laid down a helpful 'structured approach' for cases involving an Article 10 element (see para. 45 in particular).
The EAT's judgment also contains a helpful analysis of the legal principles relating to the doctrine of issue estoppel (paras. 64 - 73).