Employment Law Advocates

Since the decision of the Court of Appeal in O’Donogue v Redcar, Employment Tribunals have been permitted to decide that the loss of an unfairly dismissed employee ceases at a certain point, on the grounds that she would have been dismissed by that date, regardless of the earlier unfair dismissal. Strictly, this is not quite the same as the Polkey principle, which only allows a consideration of what would have happened if a fair procedure had been followed, but there are similarities between the two concepts, and the basic principle is the same.

A difficulty with applying O’Donoghue in the majority of cases is that the very existence of the proceedings makes it almost inevitable that the relationship between the employer and the employee has broken down but this, in itself, could not justify a reduction of the size of the award. Indeed, even the most casual reader of the Court of Appeal judgment would be struck by its frequent emphasis that any counter-factual dismissal must be one that would be fair.

An interesting clarification of these issues is provided by the case of Johnson v Rollerworld in the Employment Appeal Tribunal. The tribunal had found that the employee would have been dismissed nine months after his unfair dismissal because he had several other complaints about his treatment by his employer which demonstrated that the relationship between them had become somewhat frayed. However, as Justice Langstaff points out, his complaints were ones that he was entitled to make, and so he could not have been dismissed for making them, although it would have been legitimate for the tribunal to have concluded that he would have got fed up and resigned. Presumably this is so long as the circumstances of his resignation did not amount to a constructive dismissal.

A final point which flows from all this is that, because it is a requirement for the anticipated dismissal to be fair, any conclusion by a tribunal on this point must be well-reasoned. It must explain why the employer would have been permitted to dismiss the employee or why the employee would have been likely to resign.