The Employment Appeal Tribunal has recently handed down Judgment in Zen Internet Limited v Mr Paul Stobart [2025] EAT 153 in which David Reade KC and Georgina Churchhouse acted for Zen Internet Limited on appeal.
Deputy High Court Judge Pilgerstorfer addressed a novel point of law in accepting Zen Internet’s submission the Tribunal is 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.
At §102 the EAT held there was “no such legal fetter” and that “no restriction in terms of time periods is discernible from the statute” and that it would be wrong to develop one.
The EAT gave the following helpful explanation as to the temporal scope of the Polkey analysis at §§103-105 of the Judgment
- Confusion has, perhaps, arisen from the fact that in a typical case where the Polkey question arises, the unfairness often lies in the employer failing to take some action which would, or might, have prolonged the employment. Thus an employer might have acted unfairly by moving too quickly to dismiss and failing to consult in a redundancy dismissal; or it might have failed to investigate or hold a disciplinary meeting in response to misconduct. In such cases, as Langstaff P recognised in Stonehouse, there is likely to be a time gap between an actual decision to dismiss reached unfairly by unfair procedure, and a decision which would or might have been reached following a fair procedure.
- However this will not always be the case and the Tribunal must focus in on the particular unfairness that it has found in the facts of the case before it. One example raised during the course of argument demonstrates why this is so. Take a case where a dismissal for misconduct is rendered unfair only because of an unreasonably long investigative and disciplinary process, beset by delay. In such a case, had the employer behaved differently and fairly, the process would have concluded with the same outcome but at a date sooner than in actuality. The employee would not have lost out financially because in the hypothetical fair scenario, the employment would have ended earlier. In my judgment there is no good or principled reason why the Tribunal should have to shut its eyes to what it assesses would have occurred had the employer behaved differently and fairly, even if some or all of those actions would have occurred before the actual decision to dismiss.
- In a case concerning how the employer might have responded differently and fairly to the situation that led to the dismissal that took place (as opposed to e.g. where it is said that the employee would have been fairly dismissed for an entirely separate reason), the Tribunal should look at what it was about the dismissal that rendered it unfair. It should then assess the evidence the parties put before it and consider what is likely to have happened had the particular employer acted differently and fairly in the respects identified. The Tribunal is not limited to considering how the actions may differ from a particular point in time; however practically speaking the focus is often likely to be on the period after the original concern came to light. As the authorities show, the exercise necessarily involves a degree of speculation. Depending on the evidence different findings are possible: see e.g. those identified at principle (7) in Software 2000 at §54.
A copy of the Judgment can be found here.
David and Georgina were instructed by Square One Law LLP, having not appeared below.
