In Mitchells of Lancaster (Brewers) Limited v Tattersall the EAT upheld a finding that the Claimant was unfairly dismissed where there was a pool of 5 employees but the Respondent hadn’t considered dismissing any of the other 4 employees instead of the Claimant.

The EAT did however find that a polkey reduction of only 20% was significantly too small on the facts of this case. This is a relatively rare example of the EAT overturning a decision about a polkey reduction. Generally such decision are hard to overturn on appeal as they are generally considered a matter of fact and therefore not appealable in the absence of perversity i.e. the decision of the Tribunal being one that no reasonable Tribunal would make.

The EAT in line with several recent decisions has commented that selection criteria do not have to be objective – criteria requiring a degree of judgment can be fair. This does give employers more latitude to use criteria which can not be backed up by objective data.