Assessing remedies for a primary school lunchtime assistant’s dismissal involves human rights and Polkey deductions. This case is a useful guide on how employment tribunals and employers should approach issues which involve a freedom granted by the European Convention on Human Rights (ECHR).

Case facts

The claimant in the case Hill v Governing Body of Great Tey Primary School was a lunchtime assistant at a primary school. She became aware that a child had been tied up in the playground and whipped across the legs by other pupils. She told the child’s parents and was suspended. She complained to the press about the suspension and confirmed what she had told the child’s parents. She was dismissed for breaking confidentiality and for acting in a manner likely to bring the school into disrepute.

Employment tribunal decision

Hill won her claim of unfair dismissal at an employment tribunal, although her claim of automatic unfair dismissal on the grounds of making a public interest disclosure (whistle blowing) was rejected. At a remedies hearing, the tribunal found that if a fair procedure had been adopted, the claimant would have been dismissed anyway within two months, and reduced her compensation accordingly (a “Polkey” deduction). The tribunal also reduced her award by 80 per cent for contributory fault (in other words, she was partly to blame for her own dismissal). Hill appealed.

Polkey and ECHR tribunals

Polkey and ECHR tribunals have frequently found employers wanting in their procedures for dismissals which might otherwise have been fair. If the employer could have dismissed the employee fairly, a ‘Polkey’ deduction from an award reflects the chances that the employer would have done so.
Judging the fairness of the dismissal in this case also involved Article 10 of the ECHR, the right to freedom of expression. This right may be limited if “necessary in a democratic society” to protect the reputation of others, or prevent the disclosure of information received in confidence. If dismissing Hill for speaking out to parents and press, and thereby lowering the reputation of the school, curtailed her article 10 freedom, the school being a public authority (with a duty to ensure she had that freedom) would be relevant in assessing the fairness of what occurred.

EAT judgment The Employment Appeal Tribunal said the tribunal had not adopted the correct approach when applying Polkey. The tribunal also erred in its approach to the confidentiality issues in the case by applying its own paraphrase of the qualifications to article 10, rather than the words used in the legislation. The EAT said the tribunal should have..:

• identified whether what occurred came under article 10
• held that the school, as a public body, had to respect the exercise of the article 10 right, if it did
• considered whether restricting the right to the freedom of expression could be justified (two employer aims were potentially legitimate –protecting the reputation of the school, and preventing the disclosure of confidential information)
• satisfied itself the restriction on Article 10 was one prescribed by law (for example, a contractual term requiring respect for confidential communications) and was “necessary in a democratic society”.

The EAT allowed the appeal and remitted the case to another employment tribunal to determine the appropriate remedy.