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I’m a Barrister at Atlantic Chambers looking at various aspects of Employment Law including new developments in case law and legislation.

Polkey and New Points on Appeal – The case of Vision Security Group Limited v Mr L Goodyear (2010) UKEAT/0307/10/JOJ

Background

In Vision Security Group Limited v Mr L Goodyear (2010) UKEAT/0307/10/JOJ an employer was not permitted to raise a new point on appeal that the employee’s compensation should be subject to a Polkey deduction.  The Employment Appeal Tribunal (“EAT”) held, in any event, no Polkey deduction should have been made based on the Employment Tribunal’s other findings.

The Claimant in this matter had been employed by the Respondent as a Security Team Leader at a shopping mall in Blackburn.  The Claimant was dismissed for gross misconduct following an incident on 5th May 2009 when he asked two individuals, who had previously been banned for the premises, to leave the mall.  The Respondent dismissed the Claimant on the basis that it believed that the Claimant had taken one of the individuals out of sight of CCTV cameras to have a fight with him.  The Claimant denied the allegation and insisted he acted merely to remove the individuals from the premises.

The Employment Tribunal that originally heard this case found that every stage of the procedure adopted by the Respondent fell outside of the approach a reasonable employer should take.  It held that the Respondent’s decision to dismiss the Claimant fell well outside the range of reasonable responses open to a reasonable employer.  The Employment Tribunal’s criticisms of the Respondent included that the Claimant was not provided with a fair and proper opportunity to present his case at the disciplinary hearing, that the Respondent’s belief in the misconduct, although genuine, was based on no supporting evidence and flew in the face of the available evidence, and that the same individual both investigated the matter and conducted the disciplinary hearing.  The Employment Tribunal also found that it was unclear as to whom the dismissing officer consulted in deciding to dismiss and that the Claimant’s appeal was rejected on a different basis than the initial reason to dismiss.

The Employment Tribunal hearing

At the original Employment Tribunal hearing the Claimant was represented by a Barrister and the Respondent by an HR Manager.  At the outset of the Employment Tribunal hearing it was agreed that if the Claimant was successful, the issue of remedy (how much compensation the Claimant was to receive) would be determined at a subsequent hearing.  The Employment Tribunal however agreed with the parties that they would make findings as to whether the Claimant had contributed to his dismissal to any extent and/or whether a Polkey deduction should be made from the Claimant’s compensation.

From my experience, dealing with issues of Polkey and contributory fault at the same time that the Employment Tribunal decides liability is usually sensible and something many Employment Tribunal’s are inclined to do.  Many of the findings that an Employment Tribunal would need to make, if an employer were to argue for such deductions, can be conveniently dealt with by an employer’s witnesses during the course of the liability hearing as opposed to having the same witness perhaps give evidence twice if the issue of deductions were to be subsequently dealt with at a Remedy hearing.

At the Employment Tribunal hearing the Respondent’s HR Manager produced a note from which she addressed the Employment Tribunal in her closing submissions which stated:

In the event that this does not happen I request that the Tribunal make a reduction to any award due to the Claimant’s actions.  The Claimant has never denied having punched Mr Whittaker.  The Respondent requests a 100% reduction or alternatively any other reduction fitting.

The note did not address Polkey expressly and seemed to relate to the question of whether the Claimant’s compensation should have been deducted on account of his alleged contributory conduct.

The Employment Tribunal subsequently held in its Judgment, following determining that the dismissal was unfair, that the investigatory and disciplinary process was so flawed that it could not be said that the Claimant’s dismissal was inevitable or likely to any extent, had a fair and reasonable process and procedure been applied.  The Employment Tribunal therefore determined that the Polkey principles had no application to the Claimant’s dismissal.

The Appeal to the EAT

On appeal to the EAT the employer sought to argue that the Employment Tribunal should have made a substantial deduction from the Claimant’s compensation on account of the Polkey principles.  The Respondent alleged at the appeal that a Polkey deduction should have been made by the Employment Tribunal because at the Claimant’s Employment Tribunal hearing he admitted in broad terms that he would have handled the matter which led to dismissal in a different manner today.

The Claimant argued that the employer’s argument, that a Polkey reduction should have been made based on his own evidence, was a completely new argument not put below before the Employment Tribunal.  This argument was accepted by the EAT who held that as this was a new point it would not allow it to be raised.  The EAT found that if the Respondent’s HR Manager had wished to campaign for a Polkey deduction at the Employment Tribunal hearing she should have spelt it out.  The EAT held that the Employment Tribunal could not be faulted for its rather short finding on the Polkey principles.

The EAT went on to find in any event that a Polkey reduction should not have been made.  The EAT, although pointing out that there were different views in appellate courts about whether it is appropriate to make a distinction between substantive and procedural failings in the context of Polkey deductions, accepted the Claimant’s argument that the unfairness in this matter went to the heart of the decision making and therefore the Respondent’s failures were inapt to be described as procedural.

Analysis

Raising new points on appeal is notoriously difficult.  In the case of Kumchyk –v- Derby County Council [1978] ICR 116 the Employment Appeal Tribunal held that although there is nothing in the language of legislation to exclude the consideration of a new point of law, it would be in almost every conceivable case unjust to do so.  It was held that a new point should not be considered by an appellate court if the point was not taken due to a wrong, or what turns out to have been a wrong tactical decision by the Appellant or their advocate.  See in particular Justice Arnold’s Judgment at pages 1124B and 1125A.

The approach in Kumchyk was subsequently approved by the Court of Appeal in the case of Jones –v- Burdett Coutts Schools [1999] ICR 38 where Robert Walker LJ stated [page 44B-E]:

These authorities show that, although the appeal tribunal has a discretion to allow a new point of law to be raised or a conceded point to be reopened, the discretion should be exercised only in exceptional circumstances, especially if the result would be to open up fresh issues of fact which, because the point was not in issue, were not sufficiently investigated before the industrial tribunal. In Kumchyk’s case the appeal tribunal presided over by Arnold J. expressed the clear view that lack of skill or experience on the part of the appellant or his advocate would not be a sufficient reason. In Secretary of State for Employment v. Newcastle upon Tyne City Council the appeal tribunal presided over by Talbot J. said that it was wrong in principle to allow new points to be raised, or conceded points to be reopened, if further factual matters would have to be investigated. In Hellyer Brothers Ltd. v. Mcleod this court, in a judgment of the court delivered by Slade L.J. which fully reviewed the authorities, was inclined to the view that the test in the appeal tribunal should not be more stringent than it is when a comparable point arises on an ordinary appeal to the Court of Appeal. In particular, it was inclined to the view of Widgery L.J. in Wilson v. Liverpool Corporation [1971] 1 W.L.R. 302 , 307, that is, to follow:

“the well known rule of practice that if a point is not taken in the court of trial, it cannot be taken in the appeal court unless that court is in possession of all the material necessary to enable it to dispose of the matter finally, without injustice to the other party, and without recourse to a further hearing below.”

Conclusion

This case stresses a number of practical points for those who represent employees and employers in the Employment Tribunal.  The case of Kumchyk emphasises that it is not enough to compel an appellate court to deal with a new point just because an omission was made due to the lack of skill or experience on the part of an advocate.  As is demonstrated in this case, an appellate court is very unlikely to allow a new point on appeal just because the party appealing was non-legally represented.  Appellate courts are likely to hold HR professionals or other employment advisors to high standards and be unsympathetic to any arguments which were not made below and pursued for the first time before them.

The original philosophy of Employment Tribunals is that of access to justice.  There is nothing wrong in principle, in my view, with parties being represented by non legally-qualified individuals.  However, any party involved in Employment Tribunal proceedings should always analyse the complexity of the issues, the amount claimed and carefully consider all available options in respect of representation.  Professional advice from a legally qualified individual at an early stage may avoid the need for a costly, time-consuming, stressful and ultimately unsuccessful Employment Tribunal hearing.

For any advocate however preparation is the key; any representative should establish their arguments and ensure that they are made clearly to the Employment Tribunal, preferably in written submissions as well as orally.  If an employer wishes to avail themselves of Polkey, as they contend that an employee would have been dismissed in any event, this needs to be fully considered not only as a premise, but in detail and in connection with any supporting evidence.  As this appeal shows, formulating a new argument after a decision is made and the case lost is usually far too late.

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