Polkey reductions
[ch 9: page 84]Compensation can also be reduced by a percentage to reflect the likelihood that if a fair procedure had been followed, the employee would still have been dismissed. This is known as a Polkey reduction, after the case in which the principle was established, Polkey v Dayton Services Limited [1987] 3AER 974. It is up to the employer to persuade the tribunal that the employee would have been dismissed anyway. Typical examples include:
• where an employee is selected for redundancy using an unfair procedure but the employer shows that using a fair procedure, the claimant would still have been selected; or
• the evidence shows that an employee on long-term sickness absence would have been too sick to return to work even with reasonable adjustments, but the employer failed to consult fairly before deciding to dismiss.