Walker Smith v Perrys Motor Sales Ltd; Perrys Motor Sales Ltd v Walker Smith UKEAT/0251/17/JOJ; UKEAT/0252/17/JOJ

Claimant's appeal against the reduction of his award for contributory conduct. Respondent's appeal against a finding that the Respondent had not provided the Claimant with a statement of particulars and against a finding that the Claimant had resigned in the heat of the moment and was thereby entitled to withdraw his resignation subsequently. Both appeals were allowed.

Following notification of a disciplinary hearing for a failure to exercise appropriate control on the financial management of the sites under his control, the Claimant was suspended and then tendered his resignation on three months' notice. The Respondent refused to accept the resignation and proceeded with the disciplinary hearing. The Claimant was dismissed. He then asked to withdraw his resignation saying that he had resigned in the heat of the moment and the suspension and disciplinary hearing had caused him stress and anxiety. He won his claim of unfair dismissal and the ET reduced his award by 50% for contributory conduct but did not apply a Polkey deduction as the ET accepted the Claimant's explanation that the resignation was in the heat of the moment and had subsequently been withdrawn. The ET also found that he had not received a written statement of particulars and awarded him 2 weeks pay. Both Claimant and Respondent appealed.

The EAT allowed both appeals. The ET erred in its assessment that the employee's contributory conduct warranted a 50% reduction in compensation. Any contribution was undoubtedly at the lesser end of the scale and the EAT substituted an assessment of 15%. The ET also erred in concluding that the employee could withdraw an unambiguous resignation. Even if the resignation had been given "in the heat of the moment", the employee did not seek to withdraw the resignation until some 12 days later after he had been dismissed for gross misconduct. By that stage, it was too late. The finding that there would be no Polkey limitation on compensation was set aside. Finally, the ET erred in concluding that there had been no statement of particulars because the Service Agreement satisfied the requirements of sections 1 and 4 of the Employment Rights Act 1996. The award of 2 weeks' pay was set aside.

Published: 03/07/2018 17:03

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