Elston v Robbie’s Photographic Ltd and another UKEAT/0282/18/RN

Appeal by the Claimant against the ET’s judgment (1) upholding the Claimant’s claim of wrongful and unfair dismissal, but reducing her damages in respect of the unfair dismissal claim by 80%, and (2) rejecting the Claimant’s claim of unlawful victimisation. Appeal allowed.

The Claimant was employed by the First Respondent but, when the working relationship deteriorated, she took steps to support her grievance, including photographing confidential documents. The First Respondent considered her actions to be gross misconduct and dismissed her. The Claimant brought claims in the ET of wrongful and unfair dismissal and unlawful victimisation; the ET upheld her claim of wrongful and unfair dismissal, but reduced her damages in respect of the unfair dismissal claim by 80% under Polkey and by way of contributory fault, and it rejected her claim of unlawful victimisation on the basis that, although the Claimant had performed protected acts, they had not been the reason for her dismissal. The Claimant appealed on grounds that (1) the ET had failed to reach any determination as to the seriousness of her conduct, (2) the ET had failed to provide adequate reasons for its finding on contributory fault, and (3) it was perverse of the ET to dismiss her victimisation claim.

The EAT held that no reasonable ET could have reached the conclusion that the Claimant's protected act played no part in the decision to dismiss; on the issue of contributory fault, the ET failed to have regard to the relevant context when making its assessment of reasonableness, and so its finding under Polkey was unsafe. Accordingly, the ET's judgment on the victimisation claim would be set aside and substituted by a finding that the claim was upheld; the questions of any reduction under Polkey and/or for contributory fault would be remitted for reconsideration by a fresh ET.


Published: 19/07/2019 15:17

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