Polkey—dismissal on same date was not inevitable where there was procedural unfairness and a pool of one (Teixeira v (1) Zaika Restaurant Ltd (2) DaSilva)

Where an employee is unfairly dismissed for redundancy without any consultation or other process, in deciding what deduction (if any) should be made to reflect that a fair process might have still led to dismissal, an employment tribunal should consider: (1) what the outcome would have been had there been warning and genuine consultation with the claimant about the redundancy selection pool (e.g. whether it would still have been a pool of one or extended), (2) what criteria would have been applied and what chance there was that the claimant would have been fairly dismissed if a pool of more than one had been chosen, (3) in broad terms, what selection criteria would have been adopted and what would have been the outcome of their application, and (4) how long any necessary consultation would have taken, and what the impact of that would have been on the timing of the dismissal, even if the conclusion was that dismissal would have been inevitable, according to the EAT.

Teixeira v (1) Zaika Restaurant Ltd (2) DaSilva [2022] EAT 171

 What are the practical implications of this case?

This case is a useful reminder of considerations that employment tribunals will have to bear in mind when assessing what Polkey reduction (if any) to make in respect of compensation for an unfair dismissal where the employer failed to follow a fair redundancy process (in this case just telephoning the employee to tell them that they were being dismissed).

It demonstrates that it cannot be assumed that dismissal would definitely still occur, or that it would still occur on the same date, if there had been consultation, even in circumstances where the employer had, or would have, chosen a pool of one.

Court details

• Court: Employment Appeal Tribunal
• Judge: His Honour Judge Tayler
• Date: 2 December 2022

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