Case round-up by Eversheds

This week’s case round-up

Compensation reduction: Parties right to be heard
Market Force (UK) Ltd v Hunt, Employment Appeals Tribunal (EAT), 2002,
IRLR 863

An employment tribunal’s decision to reduce the amount of compensation
without allowing either party to be heard meant the parties had been denied a
fair hearing.

Hunt was dismissed following discovery of pornographic material on his
computer. At a disciplinary hearing, he claimed to have stored the material
accidentally but the company concluded his actions were deliberate.

Hunt brought an unfair dismissal complaint. In the absence of an adequate
investigation into the circumstances, the tribunal held his dismissal was
procedurally unfair.

The tribunal then made a 75 per cent Polkey reduction to his compensation –
where an employee’s compensatory award is reduced to reflect the probability of
his being fairly dismissed but for the procedural irregularity (Polkey v AE
Dayton Services Ltd). The tribunal concluded there was only a 25 per cent
chance that Hunt’s explanation would have been shown to be correct and that he
would not have been dismissed if a fair procedure had been followed.

The tribunal refused to allow the company to call evidence before it
assessed the Polkey percentage, so it appealed. Hunt cross-appealed.

The appeals were allowed. The determination of a Polkey reduction is a
distinct legal issue and the tribunal’s failure to allow either party to be
heard meant they had been denied a fair hearing. The case was remitted for
determination of the appropriate percentage reduction to be adopted.

There was clear authority In relation to Hunt’s cross-appeal, that a Polkey
reduction should be made to the compensatory award only. There-fore Hunt was
entitled to receive his basic award without reduction, subject to the company’s
arguments that the award should be reduced for contributory fault.

Agency is the employer
Dacas v Brook Street Bureau (UK) Ltd and another, EAT, All ER (D) 241

Dacas was placed by the agency to work as a temporary cleaner at a hostel
run by a local authority and worked there for six years.

Following a disagreement with the local authority and a previous incident,
the agency informed her it would no longer find her work.

Dacas complained of unfair dismissal to an employment tribunal, claiming she
had been employed either by the agency or the local authority. However, the
tribunal dismissed her claim, finding Dacas was employed by neither party.

She appealed, arguing that the tribunal’s findings, including that the
agency exercised considerable control over her it should have concluded she was
employed by the agency.

The appeal was successful. The only conceivable conclusion, based on the
tribunal’s findings, was that Dacas had been employed by the agency. The case
was remitted to an employment tribunal to consider whether the dismissal was

EAT guidance on time off for dependents
Qua v John Ford Morrison Solicitors, EAT, 2003 All ER(D) 29 Jan

Qua was dismissed due to high levels of absence. She claimed she was
automatically unfairly dismissed for exercising her right to take time off to
care for a dependent under s57A Employment Rights Act 1996. She argued that the
majority of her absences were due to her son’s medical problems.

The tribunal decided that Qua’s absences were not "necessary"
within the meaning of s57A, and that she had taken an unreasonable amount of
time off. Her complaint was dismissed.

Upholding Qua’s appeal the EAT, said disruption to the employer’s business
was an irrelevant consideration. The case essentially involved the right to
deal with the unexpected and did not enable the employee to provide care
herself, other than in an emergency.

However, the tribunal had failed to identify whether Qua had properly
complied with the requirements of s57A(2) each time she was absent – informing
her employer of the reason for her absence as soon as reasonably practicable.

If the tribunal found that the employee had not complied with s57A(2), then
the right to take time off under s57A(1) did not apply.

The tribunal had failed to make clear findings about the employee’s
compliance with s57A(2) and the case is to be heard again.

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