Teixeira v Zaika Restaurant Ltd
Good morning and welcome back to your weekly case law update. Last week we looked at unfair dismissal, specifically issues with reinstatement. This week we are looking at unfair dismissal again, however this time it is through the prism of redundancy and Polkey deductions.
A Polkey deduction is when the tribunal reduces a Claimant’s award for a successful claim by an appropriate percentage, based on the Claimant being able to be fairly dismissed had a fair procedure happened. For example, if an employee was dismissed on the spot after being witnessed by several people assaulting a colleague then that dismissal would be procedurally unfair. However, had a fair procedure followed it is almost 100% likely that the employee could have been fairly dismissed and thus the award is likely to be reduced to nil.
This week we are asking the question:
Does being in a pool of one during a redundancy consultation justify a 100% Polkey deduction when an employee is made redundant without consultation?
Mr Teixeira, the Claimant, was a general Tandoor chef for Zaika Restaurant Ltd, the Respondent. The Claimant was one of ten chefs employed by the Respondents. However, he was the only one not assigned to a speciality cuisine or dish. Instead the Claimant assisted other more senior chefs across five specialities. There was another Tandoor chef but they were more experienced than the Claimant and ran the Tandoor section.
At the start of the 2020 lockdown the Claimant was told over the phone he would be dismissed. No redundancy consultation procedure was followed. The Claimant was told that he was the only chef to be dismissed as all other chefs needed to be retained due to them being specialists.
The Claimant commenced an employment tribunal claim and the ET upheld his claim for unfair dismissal as the Respondent followed no procedure. However the ET also reduced the Claimant’s award to nil due to their being a 100% chance the Claimant could have been dismissed fairly had a procedure been followed given he was the only non-specialist chef and had the least experience.
The Claimant appealed and the Employment Appeal Tribunal allowed the appeal. The EAT held that the ET had erred in concluding that there was a 100% chance the Claimant would have been dismissed fairly had a procedure been followed. It failed to consider:
- That there was a chance the Claimant could have been pooled with others had he been consulted.
- That there may have been alternative roles.
- That the process would have prolonged dismissal by at least a couple of weeks.
The case was remitted back to ET to consider what the correct level of Polkey deduction was and what remedy should be awarded.
The Takeaway Point
No, being in a pool of one does not give employers carte blanche to dismiss without consultation. Whilst dismissal is more likely than in a selection scenario the employer should still consult with the employee to try and avoid redundancy. Had the employer in this case done this they would have maybe cost themselves a few weeks pay consulting but saved themselves much more in fighting the process all the way to EAT.
