Skip to content

Limited access mode: Please note you need to be an HR Protect client to access some content on this Hub.  Please enquire.

Employment Law Speed Read – 17/12/18

This week saw the Court of Appeal overturn the High Court's 2017 decision to award Michael Barrymore over £2.4 million in damages for his wrongful arrest and imprisonment on suspicion of rape and murder in 2007.

Whilst the decision itself does not concern the field of employment law, the judges’ reasoning in the case provides an important lesson in respect of “Polkey” deductions, the frequent thorn in the side of an employment tribunal compensatory award which allows a Tribunal to reduce compensation to reflect what would have happened in any event, had a fair process been followed (see Polkey v AE Dayton Services Ltd [1987]).

The arrest in 2007 was deemed unlawful as the arresting officer was unaware of the facts he needed to know to have the reasonable suspicion necessary for the arrest to be legal. When determining the case, the High Court considered what would have happened in absence of the arresting officer’s unlawful act. The High Court concluded that another officer at the scene would have made a similar unlawful arrest, as no other officer present at the time had the required knowledge for the arrest to be legal. This led to the conclusion that Barrymore was owed significant damages.

The Court of Appeal, however, overturned the decision. It said that the relevant consideration was not what would have happened in absence of the unlawful behaviour, but what would have happened had the officer in question been aware of the required information. The answer, according to the Court of Appeal, was that the officer would have made a lawful arrest. This resulted in Barrymore’s award being reduced to nominal damages.

As far as Polkey reductions are concerned, the reasoning in play is often similarly misconstrued. In an employment case, a tribunal should consider whether to reduce the compensatory award made to an employee in a successful claim for unfair dismissal to reflect the likelihood that there would have been a fair dismissal in any event (which could be up to a 100% reduction in some cases).The deduction should always be based on what would have happened had the employer followed the correct procedure, rather than what the employer would have done had they not made the procedural error. This case acts as a helpful reminder of these principles.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.