Employment Law Advocates

It is common practice for tribunals to rule on liability first and then to determine remedy later. In my experience, this can often be more trouble than it is worth, especially in short unfair dismissal cases, particularly where the issues of a Polkey reduction or of contributory fault are likely to come into play. This was even more true during the ill-fated period of the statutory disciplinary and dismissal procedure in which a procedurally unfair dismissal could be rendered fair by the effect of section 98A(2) of the Employment Rights Act. The section required the consideration of exactly the same issues as Polkey but was, strictly speaking, a matter of liability rather than of remedy, with the highly unattractive result that tribunals would often have to conduct the same exercise twice in different hearings. In the case of London Waste v Scrivens, the tribunal apparently did not think that it was necessary to consider section 98A(2) or Polkey at all but, in any event, it was criticised by the Employment Appeal Tribunal for not having dealt with these matters at the liability hearing. Somewhat surprisingly, Judge Serota then went on to reach the conclusion that contributory fault should also have been considered at the same stage.

In practice, there are advantages in tribunals giving an indication of any likely deductions after the first hearing. This is when most of the relevant evidence will have just been heard and it can also focus the minds of the parties towards settlement. The problem is that, to the non-legally trained eye, it can look as though there has been a prejudgement of what is to come and, in any event, there is so little left to determine that it barely seems worth coming back just to deal with the issue of mitigation of loss. It is hard to avoid thinking that it would have been easier to have resolved the entire case in the first place.