It is relatively rare for an Employment Tribunal decision about polkey or contributory fault to be overturned by the EAT as these are normal highly factual judgments and the EAT can only intervene where there has been an error of law or a perverse decision.

The EAT have overturned the Employment Tribunal’s decision to award a 100% polkey deduction to both the Claimant’s basic award and his compensatory award in William Frew v Springboig St John’s School on the grounds that the Tribunal did not consider all relevant factors when deciding to make the 100% deduction. The Tribunal should have considered not only what would have happened had the Respondent not ommitted to hear the Claimant’s appeal, but what effect the fact that the Claimant was provoked would have had on the decision to dismiss rather than impose a lesser sanction.

The EAT also held that the Tribunal should have considered a deduction to the basic award and compensatory award separately – making the same deduction to both automatically was an error of law. The case has been remitted to the same Tribunal to reconsider the Polkey and contributory fault deductions. The Tribunal could still make the same decision again, so this may yet prove to be a phrrhic victory for the Claimant.