1 A.C. 344,  3 All E.R. 974.
House of Lords.
The employee was employed as a van driver, and the employers decided to reorganise their business by replacing their four van drivers with three van salesmen. They considered that the employee would not be suitable for employment as a van salesman, and so made him redundant. There was no consultation (as was required by a statutory code of practice), and the employee was summarily dismissed and sent home immediately.
The employee claimed that the employers had not acted reasonably in treating redundancy as a reason for dismissal, and so he was unfairly dismissed by virtue of E.P.C.A. s. 57(3) (precursor to ERA 98(4)). The employers claimed that consultation would have made no difference, that he would have been dismissed anyway and therefore, on the basis of British Labour Pump Co. Ltd. v. Byrne  I.C.R. 347, he was not unfairly dismissed.
The question depended on the facts known to the employer at the time of his dismissal. The fact that it transpires later that the employee suffers no loss as a result of the procedural unfairness is irrelevant. British Labour Pump Co. Ltd. v. Byrne  I.C.R. 347 was overruled.
1. This was not an E.P.C.A. s. 59 selection for redundancy case (precursor to ERA 105), but was brought under s. 57(3) (precursor to ERA 98(4)).
2. The case differs from Devis v. Atkins in that in Devis, facts that came to light later would have justified the dismissal (i.e., altered the reasonable employer's position), whereas the assumption in Polkey was that proper consultation would have made no difference to what the employer did (or presumably, to what any reasonable employer would have done).
3. This case deals with the position where, ex post facto, it appears that consultation would have made no difference. However, the employer might decide at the time that there is no need to consult, in which case the reasonableness of that decision will be determined on the usual principles - see Lord Bridge's speech in the case. The test would be whether the employer's decision to dismiss without prior consultation fell within the band of reasonable responses to the redundancy situation which a reasonable employer could adopt - i.e., a similar test to B.L. v. Swift (though that case neither cited nor referred to). The H.L. followed instead Iceland Frozen Foods Ltd. v. Jones  I.C.R. 17, which applied similar reasoning to a redundancy situation.
4. Lord Mackay (with whom the others agreed) went further, and thought it would be sufficient if a reasonable employer could have dispensed with consultation, even if he made no such positive decision. This was the view taken in Duffy v. Yeomans & Partners Ltd  I.C.R. 1, noted (1995) 24 I.L.J. 272, the first C.A. decision to follow Lord Mackay (there had been conflicting authorities at first instance). (In Duffy the building industry was in recession, and the employee would almost certainly have been made redundant whatever consultations there had been.)
5. Duffy was applied in Mugford v. Midland Bank plc  I.R.L.R. 208 (E.A.T.), noted (with other authorities) (1998) 27 I.L.J. 233. Mugford was another consultation case, where the employer had consulted with the trade union but not the individual employee. The I.T.s finding that the dismissal was fair was unheld.
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These notes were last updated on 01 Dec 98.
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