Revisiting Contributory Conduct and the Polkey Principle in Unfair Dismissal: Granchester Construction v Attrill

Introduction

Granchester Construction (Eastern) Ltd v. Attrill ([2013] UKEAT 0327_12_1401) is a pivotal case adjudicated by the United Kingdom Employment Appeal Tribunal on January 14, 2013. This case scrutinizes the intricacies of unfair dismissal, focusing on the procedural fairness of dismissal proceedings and the appropriate application of deductions for contributory conduct under the Employment Rights Act 1996. The primary parties involved are Granchester Construction (Eastern) Ltd, the appellant employer, and Mr. Attrill, the claimant employee. The crux of the dispute revolves around Mr. Attrill's dismissal for alleged misconduct related to leaving the worksite early and falsifying timesheets.

Summary of the Judgment

The Employment Tribunal at Cambridge initially ruled in favor of Mr. Attrill, deeming his dismissal as unfair due to flawed procedural adherence by Granchester Construction. The core issues identified included the lack of a proper investigation, absence of a formal hearing, and failure to provide Mr. Attrill with details of the allegations against him. The Tribunal further found that the employer's decision to dismiss lacked reasonableness, especially given Mr. Attrill's previously unblemished disciplinary record. Consequently, the Tribunal awarded a compensatory amount, which was subsequently reduced by 50% under the Polkey principle—acknowledging the possibility that the dismissal might have been deemed fair had proper procedures been followed. Additionally, a further 10% reduction was applied for contributory conduct. Granchester Construction appealed the decision, challenging both the reduction percentages and the Tribunal's approach in applying the Polkey principle.

Analysis

Precedents Cited

The Judgment prominently referenced Polkey v A E Dayton Services Ltd [1987] IRLR 503, a seminal case establishing that even an unfair dismissal could merit a reduced compensatory award if there was a real prospect of the dismissal being deemed fair upon a proper hearing. Additionally, Rao v Civil Aviation Authority [1994] ICR 495 was cited for its insights into the interplay between deductions for contributory conduct and assessments under the Polkey principle. The Master of the Rolls, Sir Thomas Bingham's commentary in this case highlighted the nuanced relationship between different sections of the Employment Rights Act when calculating reductions.

Legal Reasoning

The Tribunal's legal reasoning hinged on two primary factors: the contributory conduct of Mr. Attrill and the application of the Polkey principle. The initial decision to reduce the award by 50% acknowledged that a fair dismissal might have been possible with proper procedures. The additional 10% reduction was intended to account for Mr. Attrill's alleged culpable behavior, specifically the submission of falsified timesheets and absences from work. However, upon appeal, it was determined that the Tribunal erred in its methodological approach:

Contributory Conduct: The Tribunal did not clearly delineate the specifics of Mr. Attrill's misconduct, making it challenging to quantify the 10% reduction appropriately. The appellate court noted that the deduction percentage did not align with the severity of the claimant's actions.
Polkey Principle Application: The Tribunal was criticized for assessing the likelihood of a "reasonable employer" effecting a fair dismissal rather than focusing solely on Granchester Construction's actual practices and policies. This misapplication likely resulted in an understated deduction under the Polkey principle.

The appellate court emphasized that deductions for contributory conduct should directly reflect the claimant's actions and their impact on the dismissal's fairness, rather than relying on generalized employer behavior standards.

Impact

This Judgment has significant implications for future unfair dismissal cases, particularly in how tribunals assess and apply deductions for contributory conduct and the Polkey principle. Key impacts include:

Clarification of Deduction Percentages: The case underscores the necessity for clear, fact-specific determinations when applying reductions for contributory misconduct, discouraging arbitrary or inconsistent percentage applications.
Proper Application of Polkey: It reinforces that the Polkey deduction should be based on the specific employer's likelihood to act fairly, rather than a generalized "reasonable employer" standard, thereby ensuring more accurate compensatory awards.
Emphasis on Procedural Fairness: The Judgment highlights the paramount importance of adhering to proper disciplinary procedures, as procedural lapses can render dismissals unfair regardless of the underlying conduct.
Guidance for Employers and Tribunals: Employers are prompted to follow rigorous disciplinary processes, and tribunals are guided to adopt more precise methodologies in evaluating contributory conduct and procedural fairness.

Complex Concepts Simplified

Polkey Principle

Originating from the Polkey v A E Dayton Services Ltd case, the Polkey principle allows tribunals to reduce compensatory awards in unfair dismissal cases where there was a real chance that the employer would have dismissed the employee even if the procedural irregularities had not occurred. Essentially, it recognizes that some form of disciplinary action might have been justified despite procedural flaws.

Contributory Conduct

Contributory conduct refers to the behavior of the employee that may have played a role in the dismissal. Under the Employment Rights Act 1996, tribunals can reduce compensation if the employee's actions contributed to the situation leading to dismissal. This ensures that compensation reflects both the employer's and employee's roles in the breakdown of employment.

Employment Rights Act 1996: Sections 122(2) and 123(6)

- Section 122(2): Pertains to the reduction of the basic award if the employee's conduct justified it. Tribunals must adjust the basic award to account for any wrongdoing by the employee that contributed to the dismissal.

- Section 123(6): Deals with the compensatory award's reduction due to the employee's contributory conduct. The reduction should be just and equitable, reflecting the extent to which the employee's actions contributed to the dismissal.

Conclusion

The Granchester Construction (Eastern) Ltd v. Attrill case serves as a critical examination of the application of the Polkey principle and the assessment of contributory conduct in unfair dismissal claims. The Employment Appeal Tribunal's decision emphasizes the need for precision and fairness in tribunals' evaluations, ensuring that reductions in compensatory awards are both justified and reflective of the specific circumstances of each case. By rectifying the Tribunal's methodological errors, the Judgment reinforces the integrity of procedural fairness and the equitable treatment of employees within the UK employment law framework. For employers, it underscores the importance of meticulous adherence to disciplinary procedures, while for employees, it highlights the avenues available to challenge unfair dismissals effectively.

Ultimately, this Judgment contributes to the evolving jurisprudence surrounding employment disputes, promoting a balanced approach that respects both the rights of employees and the legitimate interests of employers.