The Court of Appeal has granted permission to appeal in the case of Zen Internet Ltd v Stobart [2025] EAT 153. The case involves the reasonableness of the decision to dismiss Mr Stobart on the ground of capability.
David and Georgina were previously successful in establishing a novel point of law in relation to Polkey, such that when considering the Polkey question Employment Tribunals are now not limited to looking forward from a particular date (e.g. the date of dismissal or notice of dismissal) in predicting what is likely to have occurred if the employer had acted differently and fairly when conducting the Polkey analysis, instead the period following the unfairness in question can be considered.
Before the Court of Appeal the Court will be called on to consider the separate issue of the reasonableness of the decision to dismiss for capability in the context of senior executive dismissals, in Mr Stobart’s case, as a Chief Executive of Zen Internet Ltd, and consideration of when certain procedural steps might be “utterly useless” or futile (Polkey v AE Drayton Services Ltd [1998] ICR 142, HL) ; unnecessary in light of the Claimant’s seniority and thus consciousness of the performance issues; (Laycock v Jones Buckie Shipyard Ltd EAT 395/81 and James v Waltham Holy Cross Urban DC [1973] ICR 398, NIRC); and when inadequacy of performance is so extreme that there is irredeemable incapability, such that an unfair burden would be placed on the business; (James v Waltham Holy Cross Urban DC [1973] ICR 398, NIRC).
