Polkey and contributory fault: liability or remedy?

Unfair dismissal hearings are very often split between a ‘liability’ hearing, at which it is decided whether or not the claimant has been unfairly dismissed, and a ‘remedy’ hearing, at which it is decided how much compensation she gets. Even where the case is listed for both liability and remedy and there is in fact time to do both, what usually happens is that the tribunal hears the evidence and argument on liability first, then makes its decision, and then – if the claimant has won – calls the parties back in for some more evidence and argument about remedy.

Unfortunately the distinction between the two things isn’t always completely clear-cut, and this can cause confusion about what exactly is being dealt with when. For example: when does the tribunal want to hear what the parties have to say about contributory fault and/or a ‘Polkey’ reduction – at the liability or remedy stage?

Either is possible, so the main thing is to make sure you don’t miss the boat. Include all the remedy issues in your list of issues. Then when it becomes clear that there is going to be a separate remedy hearing – or even that the tribunal is going to decide liability before calling you back in on the same day to deal with remedy – you can go back to the list and check which issues they want you to deal with when.