How much can you get for unfair dismissal ?
If the employer establishes that conduct was the reason for dismissal, the next stage for the employment tribunal is to consider whether the employer acted reasonably in treating that reason as sufficient to dismiss in all the circumstances.
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In most unfair dismissal cases involving misconduct, the tribunal will consider three questions (often referred to as the Burchell test, after the case of British Home Stores v Burchell in which they were set out), namely whether:
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whether the employer had a genuine belief in the employee's guilt
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whether that belief was formed on reasonable grounds
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whether the employer carried out a reasonable investigation
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Although Tribunals are not obliged to follow these guidelines, they are used in virtually every misconduct case.
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Considering these three questions:
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the first question, as to whether the employer had a genuine belief in the misconduct alleged, goes to the reason for dismissal, and the burden of proof in relation to that issues lies with the employer
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however, the second and third questions, as to whether there were reasonable grounds for the belief based on a reasonable investigation, go to the question of reasonableness, and in relation to these the burden of proof is neutral
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combining all three questions as if they all went to the reason for the dismissal is wrong and very common mistake of employers
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as regards the third question, an employer is not required to gather all the available evidence; it is only obliged to carry out such investigation as is reasonable. But deliberate ommision of important facts or answer to important questions can attract adverse inferences.
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Essential Consideration
Did you actually commit misconduct? If "Yes," you should consider a "Polkey" reduction when calculating your possible award or when putting a settlement figure.
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Polachan vs Ashgrove Care Home Four read full judgement here
"Polkey" reduction, which allows for a reduction in compensation if the dismissal is deemed unfair solely due to procedural issues, and it is likely the employee would have been dismissed regardless of the procedural errors. This principle is relevant to the question as it addresses the potential for reducing compensation based on the circumstances surrounding the dismissal, which could include the employee's behavior during the disciplinary process.
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The respondent argues that a “Polkey” reduction should be applied in this case, if the tribunal finds that the dismissals were procedurally unfair. This argument refers to the principle set down in the landmark judgment of Polkey v AE Dayton Services Ltd ICR 142, which is that if the dismissal is held to be unfair solely on procedural grounds, the compensation awarded to the employee should be reduced to reflect the likelihood that he/she would have been dismissed in any event had the employer followed proper procedure.​​
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