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A claimant won his tribunal case for unfair dismissal using the whistleblowing legislation. Before he was awarded compensation he began a vendetta against his former boss, making false allegations of dishonesty to the police.
The ET decided that he would receive no compensation from the time he made the false allegations a day after the liability hearing. The EAT upheld the ET decision. According to the so-called Polkey rule(If an employer would have later on dismissed for a valid reason there would be no compensation for an earlier unfair dismissal). Even though the claimant had been unfairly dismissed and was due compensation, the tribunal decided he should not receive any money for the time after he started the vendetta. The claimant argued that he shouldn't penalised as to his compensation because he had already been judged to have acted in good faith at the liability hearing and that the Polkey principles should not apply at the remedies hearing. The claimant claimed that the matter was res judicata (once there has been a judgment it can't be judged again). The EAT decided that notwithstanding the original judgment the tribunal was still obliged to consider new evidence as regards assessing compensation. If it was fair to dismiss the claimant from the time he made a spurious allegation to the police then the limits of liability to the claim should surely run from the time of the complaint. ("loss and damage should (be evaluated on) the basis of the evidence available at the time of assessment” - Pill LJ in Richmond Adult Community College v McDougall [2008]). As compensation dependes on "how long the employee would have been employed but for the dismissal” (Elias P in Software [54] (1) page 836),” the EAT decided that the claimant's behaviour was relevant to the tribunal's assessing compensation. | ||
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