‘What is a procedure’?

In an article in the New Law Journal of 22 September, Elliot Gold and Francis Davey considered conflicting decisions as to the effect of breaches of disciplinary procedures. Polkey v AE Dauton Services Ltd [1987] 3 All ER 974 decided that any procedural unfairness was sufficient to render a dismissal unfair, although the likelihood that a dismissal would have happened anyway was relevant to the question of compensation. Section 98A of the Employment Rights Act 1996 was intended to overturn Polkey and allow an employment tribunal to discount any procedural breach if an employer could show that a dismissal would have happened even if proper procedures had been followed. Subsection (2) provides: ‘… Failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of s98(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.’ There is no doubt that s98A(2) does not apply to breaches of the statutory standard dismissal procedure. The conflict arises over the meaning of the words ‘a procedure’. In Alexander v Brigden Enterprises Ltd [2006] All ER (D) 224 (Apr) it was held that the provision was not limited to cases where the employer had failed to comply with his own established procedures; it included any procedure with which the employer ought to have complied. However, in Mason v Governing Body of Ward End Primary School [2006] ICR 128 the EAT held that the words were limited to mean a particular procedure in force at a particular workplace, the terms of which were not carried out. It did not apply to a failure to follow wider procedures such as the ACAS code or the standards of a reasonable employer. A dismissal will not be rendered unfair by any other procedural unfairness provided the employer can prove that the decision to dismiss would have been made anyway The authors suggest that Alexander v Brigden Enterprises appears to follow what the Government intended, although it fails to explain the particular language in the statute. If s98A(2) was meant to insure an employer against any procedural unfairness, it should say so. The safest advice for employers is to focus on complying with the overarching principles of fairness, particularly as expressed in the ACAS codes of practice.