In exceptional cases, where an employer can show that a fair process would have been utterly futile, dismissal will not be unfair. This happened recently in the Ashby case.
Mr Ashby was an Associate Director in charge of HR and Payroll for JJB Sports. Following financial troubles, a new Chief Executive was brought in to turn the business around. The Chief Executive appointed someone senior to Mr Ashby as HR Director. Mr Ashby's duties were redistributed and he was made redundant without consultation or the opportunity to apply for the HR Director role.
Mr Ashby brought an unfair dismissal claim based on the lack of a fair procedure. The EAT agreed that, because JJB Sports needed to act quickly to save its business and the new HR Director's skills and experience were heads and shoulders above Mr Ashby, any redundancy consultation would have been utterly futile. The dismissal was consequently fair and Mr Ashby was not awarded any compensation. However, employers should note that they will only be able to take advantage of this principle in very limited cases and should not take this as an opportunity to dispense with redundancy consultation.
Polkey also states that, if the employer fails to persuade the Tribunal that a fair process would have been futile, the Tribunal can instead reduce or limit the award to take account of the fact that the employee might have been dismissed in any event. This is the more common application of Polkey.
In the Morrisons case, Mr Kessab was accused of having sworn at a manager and thrown his keys at him while under a written warning. He was consequently summarily dismissed. The investigation process was lacklustre and Mr Kessab was given less than 24 hours to consider the investigatory evidence. The disciplinary manager took a 20 minute break in the middle of the meeting to draft the outcome letter and the Tribunal criticised the speed of the decision. Mr Kessab was not provided with all of the evidence at the appeal stage.
The Tribunal found that Mr Kessab had been unfairly dismissed because Morrisons had not carried out a reasonable investigation and did not have reasonable grounds on which to sustain a belief in Mr Kessab's misconduct. The Tribunal prevented Morrisons from seeking a Polkey reduction on the basis that there had been substantive unfairness as well as procedural unfairness. The EAT rejected this distinction and stated that Polkey reductions could be applied in both types of cases; a useful confirmation of previous case law on this subject.