Legal principle
An employer cannot normally defend an unfair procedure merely by arguing that consultation or a warning would have made no difference. A dismissal may be unfair because of the process, although compensation can be reduced to reflect the chance that a fair process would still have led to dismissal.
What the court decided
The House of Lords treated liability and loss as separate questions. The missing procedure may make the dismissal unfair; the likely outcome of a lawful process is then considered when assessing compensation.
The practical test
- 1
First decide whether the actual dismissal procedure was fair under section 98(4).
- 2
If it was unfair, estimate the chance and timing of dismissal following a fair procedure.
- 3
Apply any evidence-based reduction to compensatory loss rather than rewriting the liability decision.
How tribunals apply it
- A Polkey reduction can range from a modest percentage to 100%, depending on the evidence.
- The employer should show what a fair process would have involved and why it would probably have reached the same result.
- Tribunals should avoid speculative reductions unsupported by evidence.
Connected legislation
WorkDisputes tribunal data
Recent decisions involving related issues
These decisions are selected from topic classifications in our public Employment Tribunal dataset. A matching topic does not mean the decision applied this authority directly.
Unfair Dismissal, Discrimination and Unpaid Wages
Employer: Lynx Support Services Ltd
The claims for unauthorised deductions and unfair dismissal were dismissed as out of time, while the discrimination claims were allowed to proceed.
Legal Issues (3)
- Time limits
- jurisdiction
- just and equitable extension of time limits
Reference: 6023481/2024
Unfair Dismissal, Discrimination and Other
Employer: Medway Council
All claims were dismissed on the merits after a full hearing; the Tribunal found no unlawful treatment or breach of the relevant regulations.
Legal Issues (4)
- Interpretation of the Fixed-term Employees Regulations 2002 (less favourable treatment)
- pregnancy/maternity discrimination under s18 Equality Act 2010
- automatic unfair dismissal under regulation 10 Maternity and Parental Leave Regulations 1999 (duty to offer suitable alternative vacancy during maternity leave)
- whether a lower-paid role must be offered with salary protection
Reference: 6012100/2024
Unfair Dismissal, Discrimination, Breach of Contract and Other
Employer: Monolith UK Ltd
All claims were struck out due to non-compliance with tribunal orders and failure to actively pursue the claims.
Legal Issues (5)
- Deposit orders under Rule 39
- strike-out for non-payment under Rule 40(4)
- definition of disability under s.6 Equality Act 2010
- burden of proof
- strike-out for non-compliance under Rule 38
Reference: 3303832/2024
Unfair Dismissal and Breach of Contract
Employer: Tesco Stores Ltd
The unfair dismissal claim was dismissed (lost) but the wrongful dismissal claim succeeded (won), resulting in a split outcome.
Legal Issues (2)
- Unfair dismissal under the Employment Rights Act 1996
- wrongful dismissal (breach of contract) for notice pay
Reference: 2309092/2024
Unfair Dismissal, Unpaid Wages and Breach of Contract
Employer: Bracknell Printroom Ltd
The claimant succeeded on claims of wrongful dismissal and unfair dismissal, with the holiday pay claim withdrawn.
Legal Issues (7)
- Whether the claimant was dismissed or resigned
- credibility of witnesses
- amendment application by respondent
- witness order for Mr Harcup
- Polkey argument regarding hypothetical redundancy
- mitigation of loss
- calculation of compensatory award for unfair dismissal
Reference: 6012799/2024
Unfair Dismissal
Employer: Wickes Building Supplies Ltd
The claim was struck out because the claimant lacked the requisite two years' continuous service for an unfair dismissal claim, the claim was presented significantly out of time, and the claimant failed to actively pursue the claim or comply with case management directions.
Legal Issues (3)
- Jurisdiction to hear an unfair dismissal claim: (1) claimant lacked the requisite two years' continuous employment
- (2) claim presented out of time (5 months late) with no explanation
- (3) claim struck out for no reasonable prospect of success and failure to actively pursue (Rule 38)
Reference: 6012922/2025