Redundancy dismissal found unfair but 100% Polkey deduction applied

This case illustrates how a procedural failure in a redundancy process can lead to a finding of unfair dismissal, but compensation may be significantly reduced if the employee would have been dismissed anyway. The former employee, who had worked for the company for 12 years and was over 41 throughout, was dismissed by reason of redundancy. The employer went into liquidation, and the second respondent (the Secretary of State) was liable for the redundancy payment.

What the tribunal decided

The tribunal found that the dismissal was unfair because the employer did not follow a fair procedure. However, a 100% Polkey deduction was applied, meaning the employee received no compensatory award for unfair dismissal. This was because the tribunal concluded that, even with a fair process, the employee would have been dismissed within the 12-week notice period. The employee did receive a redundancy payment, unpaid wages for three days, holiday pay, and awards for loss of statutory rights and failure to provide written particulars.

What could have been done differently

If the employer had followed a fair redundancy procedure, the dismissal might have been fair, and the employee would still have been entitled to a redundancy payment. The employer's failure to provide written particulars also led to an additional award. The employee's representative presented the case effectively, securing compensation for multiple heads of claim despite the Polkey deduction.

Why this matters

This case shows that a Polkey deduction can completely eliminate a compensatory award if the employee would have been dismissed in any event. However, other claims such as redundancy payment, unpaid wages, and holiday pay are not affected by Polkey. Employees facing redundancy should ensure they receive their statutory entitlements, and employers must follow fair procedures to avoid findings of unfair dismissal.