Whilst this case concerns the TV personality Michael Barrymore’s claim for damages against the police for his false imprisonment following his (unlawful, as the police admitted) arrest in 2007, it has relevance to employment law and specifically ‘Polkey’, an often misunderstood principle (and an often negative one for Claimants).
Michael Parker, stage name Barrymore, claimed £2.4 million in damages (allegedly caused to his career) from the police for false imprisonment but in the end, whilst he won his claim he was only awarded “nominal” damages. This was because the Court of Appeal, when assessing compensation due, reconstructed what would have most likely occurred if the arresting police officer had appreciated what the law required when arresting him. In a nutshell, the Court of Appeal decided that the officer would either have been given the facts prior to arrest to enable him to lawfully effect the arrest, or an officer with appropriate information would instead have effected the arrest.
Polkey requires the same approach in the ETs. So, for example, where an ET finds that an employer has failed to give a right of appeal or adopted an unfair procedure for carrying out redundancy selection amongst employees and a dismissed employee has therefore been unfairly selected and dismissed, Polkey comes into play. The ET must consider what the employer would have done if they’d appreciated what the law required them to do – so using the above example, would the employee still have been still have been selected for redundancy and dismissed if there had been a right of appeal? The ET will apply a percentage reduction from compensation to take into account that likelihood. If the ET decided that dismissal was still absolutely inevitable, it could make a deduction of as much as 100%.
This is why in reality ET awards for dismissals that are procedurally unfair are commonly the lowest of unfair dismissal awards in the ETs.