The Claimant was dismissed upon the expiry of a fixed-term assignment in the UK at the end of August 2016. In its liability decision the ET had found the dismissal to have been unfair in part in relation to the handling of the possibility of alternative employment in what were referred to as BFS roles. In March 2016 the Claimant had been told of potential BFS roles in Poland, but not told that they could be done in the UK, as it was thought that she would not be able to get the requisite visa. The ET had held that the Claimant should have been offered the UK option, and the visa issue discussed with her. At the remedy hearing the ET calculated the compensatory award on the basis that, had she been offered the option of doing a BFS job in the UK, the claimant would have taken that up, and there was a 50% chance that the requisite visa would then have been obtained. This was despite the Respondent presenting evidence to the remedy hearing which it argued showed that, in the event, the Claimant would not have been put into a BFS role, as there would have been no such post available at the relevant time. The Respondent appealed, arguing that the ET had erred by concluding that it had been determined by the liability decision that there was a job available, and so this issue could not be raised or revisited at the remedy stage.

The EAT allowed the appeal. On a fair reading, the liability decision had only made findings of fact about the position when the roles were discussed with the claimant in March 2016, at which point they were described as a potential, and not guaranteed. While the Respondent had not, at the liability hearing, advanced any case, or evidence, that in the event the Claimant would not have been put into a BFS role, it was entitled to raise this contention as a Polkey point at the remedy stage. Evidence from both sides relating to the issue had been presented at the remedy hearing. The ET should have made findings about it, when assessing the compensatory award.