The background to Williams v Amey Services Limited was what the EAT described as a "less than happy working relationship" between the claimant and his managers, the claimant engaging in what was perceived as persistently annoying behaviour which led to complaints from colleagues and the issuing of a grievance from one of his managers. Eventually a disciplinary hearing was called, the HR department apparently taking the view that he should be dismissed for "some other substantial reason" due to the total breakdown of the employment relationship.
The claimant's subsequent dismissal was found to be unfair, essentially because his own concerns had not been dealt with and the decision to dismiss him had already been taken before the meeting arranged to terminate his employment.
The tribunal decided that the amount of the compensatory award should be reduced, for two reasons:
- There was a 10% chance that the claimant might still have been dismissed, even if a fair process had been followed. So the "Polkey" deduction was 90%.
- A further deduction, of 100%, should be made because the claimant had contributed to his own dismissal. This left the claimant with no compensatory award.
The EAT sent the case back to the tribunal to reassess these deductions. On the Polkey deduction, the tribunal had not fully answered the complex question – what would have been the likely outcome had that been done which ought to have been done, at the various different points in the chronology, by this employer faced with these circumstances? This needed an analysis of what might have happened if:
- The claimant had been given formal warnings earlier in the process.
- The employer had not short-circuited the disciplinary process.
- The claimant had been given a chance to put things right.
On contributory fault, the EAT confirmed that the claimant must be culpable and blameworthy but this encompasses a wide range of conduct, including "bloody-mindedness" and behaviour that is "unreasonable in all the circumstances". In this context, the tribunal was correct to take into account the claimant's personality, including his own evidence that his behaviour was "just how I am", plus the fact that his many years of working should have meant that he did not require managing to the degree that became necessary. Having said all that, the deduction could not possibly amount to 100%, so this aspect was also remitted.