Evans v Capio Healthcare (UK) Limited, EAT 16 August 2004

Ms Evans, a personnel manager, applied for an alternative post when proposals to close her department were suggested following a strategic review of the group HR function by the new head of that department. Evans was unsuccessful and, following a series of meetings and grievances, her redundancy was confirmed.

The company went through the motions of considering alternative employment, but it was clear that it felt she was obstructive to any future progress or indeed to constructive suggestions.

Evans successfully brought an unfair dismissal claim. The tribunal held there had been inadequate consultation and no genuine consideration of alternative employment. However, Evans received no compensatory award as the tribunal held she had contributed to her own dismissal because of her obstructive approach to the redundancy process, and the company’s business proposals would have resulted in her redundancy in any event. She successfully appealed.

The EAT held that her contribution to her own dismissal was irrelevant and in terms of the ‘Polkey principle’ – where an employer who fails to follow proper procedures is able to claim that it would have made ‘no difference’ to the outcome – the errors were not purely procedural, going instead to the heart of the unfairness of the dismissal. Even if a fair procedure had been followed, dismissal would not have been inevitable.
The EAT sent the case back to the employment tribunal to reconsider the amount of compensation.

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