Ms S Pal v Accenture (UK) Ltd: [2026] EAT 12

In this case, the Employment Appeal Tribunal (“EAT”) restated the principles applicable to 100% Polkey reductions - deductions made to an unfair dismissal compensatory award to reflect the chance that an individual would have been dismissed even if the employer had acted fairly - and confirmed that endometriosis amounted to a disability for the purposes of a disability discrimination claim.

The Claimant was employed by the Respondent from August 2009 until her dismissal in July 2019. The Respondent operated a progression-based performance model under which employees were expected to be continuously developing towards the next level of seniority; those who failed to demonstrate this development were deemed to be underperforming.

Following surgery to remove ovarian cysts in September 2018, the Claimant was diagnosed with endometriosis and had two periods of sickness absence. In June 2019, she was informed her performance was “not progressing” and she was dismissed the following month. She brought claims for unfair dismissal and discrimination arising from disability.

The Employment Tribunal (“ET”) upheld the unfair dismissal claim, finding that the Respondent had breached its own Disciplinary and Appeals Policy by failing to conduct a formal investigation and having decision-makers who had previously been involved in managing the Claimant’s performance. However, the ET applied a Polkey reduction of 100% to the compensatory award, meaning that the award was reduced to nil to reflect its view that the Claimant would have been fairly dismissed in any event. The ET dismissed the disability discrimination claim.

The Claimant appealed to the EAT on three grounds, all of which succeeded:

• First, the ET had made a mistake in its Polkey analysis. Rather than asking what the Respondent would or might have done had it complied with the Disciplinary and Appeals Policy (failure to comply with which had made the dismissal unfair), the ET had constructed a counterfactual in which the Respondent introduced an entirely new policy. There was no evidence that the Respondent would have done so. The correct approach was to assess what would or might have happened had the Respondent remedied the specific defects identified in its handling of the dismissal.

• Secondly, the ET’s finding that capability was the potentially fair reason for dismissal required reconsideration. Capability must relate to an employee’s ability to perform work of the kind they are employed to do under their contract. A dismissal for failure to be ready for promotion to the next level may not satisfy this definition (although it may fall into the category of “some other substantial reason justifying dismissal” or “SOSR”). This would in turn require the ET to consider whether the reason justified dismissal by reference to the applicable statutory definition.

• Thirdly, the ET’s reasoning on disability was “wholly inadequate”. The ET had effectively dismissed the Claimant’s impact statement on account of general credibility concerns, made irrelevant comments about other women’s experience of endometriosis, and failed properly to assess whether her condition had a substantial and long-term adverse effect on her day-to-day activities, including matters beyond workplace absences, such as her ability to lift things. As a result, the ET had also failed to properly assess the Respondent’s knowledge of the disability and whether the dismissal was a proportionate means of achieving a legitimate aim.

This case is a useful reminder that, when assessing a Polkey reduction, the ET must keep its focus on what the employer in question would or might have done had it corrected the specific procedural defect(s) identified; it should not construct an entirely different counterfactual unsupported by the evidence. The EAT’s analysis of capability versus SOSR is also helpful for employers who operate progression-based performance models, as it suggests that capability may not be an available potentially fair reason where dismissal is driven by a lack of readiness for promotion rather than a failure to perform the role the employee is actually employed to do. Finally, the EAT’s robust rejection of generalised comments about endometriosis serves as an important reminder that disability assessments must be conducted on an individual basis, having regard to the specific claimant’s evidence and any supporting medical evidence.