Reinstatement orders and Polkey reductions

Sun, 17 Mar 2013

In Arriva London North Ltd v Eleftheriou UKEAT/0272/12/LA the EAT upholds a reinstatement order made by an Employment Tribunal despite a 60% Polkey reduction. Irvine Maccabe summarises the ruling.
In January 2010, Claimant bus driver went on sick leave after falling over at home. He was dismissed in May because it was highly unlikely that he would have been able to return work within 6 months thereafter. The Tribunal found the Respondent should have sought further evidence as his likely return to work date, and so the dismissal was procedurally unfair. 
It also found that there was a 60% chance he would have been fairly dismissed in June upon receipt of such evidence. He was not in fact fit to return to driving until January 2011 i.e. one year after the accident. In February he was employed elsewhere as a bus driver, at a lower wage. The Tribunal ordered reinstatement but with a Polkey deduction of 60% on the monies which should properly have been paid on reinstatement. 
The Respondent appealed against the reinstatement, the Claimant against the Polkey deduction. The parties agreed that under s 114 ERA the Tribunal had no jurisdiction to make any deductions on a reinstatement; accordingly, the cross appeal was allowed. 
The appeal was dismissed: the EAT rejecting the argument that the Tribunal’s jurisdiction blunder fatally compromised the exercise of its discretion to reinstate. The EAT stated that Polkey is only relevant to compensation, and not to the wide discretion to order reinstatement. 
The case is also noteworthy for the only joke Langstaff P is believed to have made in any judgment (judgment, paragraph 16) and, perhaps less surprisingly, the continuing inability to spell Counsel’s surname correctly. 
Irvine Maccabe was Counsel for Arriva in this case.

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