The Claimant, an Indian national, was employed by the Respondent for six months until he was dismissed. The ET found unanimously that the Claimant was unfairly dismissed for making a protected disclosure and for asserting a statutory right, in breach of ss 103A and 104 Employment Rights Act 1996 ("ERA"), and that the Respondent had made unlawful deductions from the Claimant's wages. At a further Remedy Hearing, the ET made a compensatory award in excess of £120,000, and the Respondent appealed on a number of grounds, chief among them that the ET erred in awarding compensation for loss of earnings by reference to the full measure of the Claimant's ordinary weekly gross pay (when he was, in fact, off sick and entitled only to statutory sick pay), and that the ET failed to consider and/or make a Polkey reduction on various grounds.

The EAT held that there were a number of errors in the Remedy Decision, including awarding full loss of earnings for the post-dismissal sickness period without making a finding as to whether, or to what extent, the dismissal had exacerbated or prolonged the Claimant's depression, and using the test of balance of probabilities to determine the Polkey chance that the Claimant, had he remained employed, would or might have returned to India before his visa expired. Accordingly, the matter would be remitted to the same ET, if available.