Hainge v BE Enterprise Limited

Assessing compensation
Hainge v BE Enterprise Limited, EAT 5 July 2005, EAT website September 2005

Facts

Mr Hainge was made redundant and brought a claim for unfair dismissal. The tribunal upheld his complaint and concluded that the employer had acted unreasonably by not providing Hainge with the redundancy selection criteria before he was made redundant, or before his appeal.

It also found it unreasonable that Hainge had not been given the chance to appeal, because the appeal deadline had been changed from seven to five days. This timing change was important as Hainge was going on holiday – a fact which, according to the tribunal, his employer knew. Hainge was awarded £11,375 in compensation.

Appeal

The employer appealed in relation to the appeal and selection criteria. It claimed that the tribunal had failed to consider whether following a proper procedure would have affected the compensation (often called a ‘Polkey principle’). If Hainge would in any case have been dismissed had a proper procedure been followed, then this should be reflected by a reduction in his compensation.

Decision

The Employment Appeal Tribunal (EAT) dismissed the employer’s appeal on the first two grounds (selection criteria and the appeal), but allowed the appeal on the Polkey principle.

The EAT could find no satisfactory explanation to justify the tribunal’s decision to give the full compensatory award to Hainge.

The award was set aside and the case sent back to the tribunal to reconsider the issue of compensation in light of the Polkey case.