The "Up or Out" Trap

It is a common mantra in high-performance consultancies: "Up or Out". If you aren't progressing to the next level, you are technically underperforming, even if you are perfectly competent at your current job.

This week, the Employment Appeal Tribunal (EAT) took a hard look at this model in Ms S Pal v Accenture (UK) Ltd [2026] EAT 12.

Ms Pal was a manager at Accenture. She failed to secure a promotion to Senior Manager and was subsequently dismissed for underperformance. This happened just three months after she returned from surgery for endometriosis—a condition the original Tribunal accepted as a medical fact but somehow dismissed as a disability.

The "Wholly Inadequate" Assessment

The EAT was scathing about how the original Tribunal handled the disability question. The Tribunal had essentially decided that because Ms Pal was smart and articulate, her account of her physical pain was not credible. The EAT called this reasoning "wholly inadequate".

The Lesson: Credibility on one issue does not equal medical fact on another. Employment Tribunals cannot play doctor, especially with complex conditions like endometriosis which fluctuate and are often invisible.

The Polkey Trap

But the real technical nugget here is about Polkey.

The original Tribunal found the dismissal was procedurally unfair but awarded Ms Pal almost nothing (just £4,275) because it concluded there was a 100% chance she would have been dismissed anyway.

The EAT overturned this. Why?

Because the Tribunal asked the wrong question. It asked: "What would WE have done?" instead of "What would THIS employer have done if they had followed a fair procedure?"

If Accenture had run a fair procedure, it would have involved independent investigators and decision-makers who weren't wedded to the "Up or Out" philosophy. You cannot reconstruct a hypothetical future based on the flawed logic of the past.

Takeaway for Practitioners

If you are arguing for a Polkey reduction, you need evidence of what a fair process would have looked like in that specific organisation. You cannot just rely on the inevitability of the result if the machinery that produced that result was broken.

Next Steps

  • Review your "progression" policies. Is "standing still" really a sackable offence?
  • Ensure disability assessments focus on impact, not just the employee's demeanour in a hearing.

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