The company made selections for redundancy, but failed to give the appellants information about how the scoring system had resulted in the figures allocated. The calculations left their representative unable to challenge them on appeal. The procedure adopted did not follow the statutory rules, but the tribunal had found the dismissals to be fair. The employees now said they had been automatically unfairly dismissed in breach of the statutory dismissal procedure, that the dismissals were unfair for procedural failings, despite the tribunal finding they would have been dismissed anyway, and that the finding of 100% chance of dismissal was an unjustified finding displaying an error of law.
Held: The appeal succeeded. The procedure was intended to avoid matters going to the Employment tribunal, and the information to be provided must be at least sufficient to enable the employee to give a considered and informed response to the proposed decision to dismiss, but the bar for compliance with the procedures should not be set too high. At the first stage, the employer need only set out the broad grounds, but at the second it must inform the employee of the basis of those grounds: ‘the employee must be given sufficient detail of the case against him to enable him properly to put his side of the story. The fundamental elements of fairness must be met. ‘ The employer having failed to meet that standard, the dismissals were automatically unfair. ‘in order to comply with the statutory provisions an employer should provide to the employee not only the basic selection criteria which have been used, but also the employee’s own assessment. That will give the employee an opportunity to make representations not only about whether the criteria are justified and appropriate but also, more importantly, whether the marking given to him in respect of any particular criterion is arguably unjust, and why.’ and
‘section 98A(2) applies to all procedures, which we take simply to mean the steps which ought to be taken by an employer before determining that he will dismiss a particular employee. Those steps will of course vary depending on the reason for the dismissal. There is no magic in the word ‘procedure’ and there is no justification for seeking to redefine some steps which would naturally be described as ‘procedural’, such as the duty to consult, as ‘substantive’ merely on the basis that they are said to provide particularly important safeguards for the employee. All procedural requirements are important for employees. ‘
As to Polkey: ‘Polkey now has only limited application. . . . it is still relevant where the statutory procedures have been infringed so that the dismissal is automatically unfair [and] even where the statutory procedures are complied with but the dismissal is unfair under section 98(4), Polkey will still apply where on the balance of probabilities the employee would not have been dismissed even had a fair procedure been complied with, but where there is a chance that he might have been. ‘ The dismissals were automatically unfair, but the award was limited to the minimum basic award of 4 weeks pay.
The Honourable Mr Justice Elias (President)
[2006] UKEAT 0107 – 06 – 1204, [2006] IRLR 422, UKEAT/0107/06, [2006] ICR 1277
Bailii, EATn
Employment Act 2002, Employment Relations Act 1996 98A(2), Employment Act 2002 (Dispute Resolution) Regulations 2004 3(1), 12(1)
England and Wales
Citing:
Reversed by Statute – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
Cited – King and Others v Eaton Ltd IHCS 1-Feb-1995
The applicants were four of 20 employees selected for redundancy. One complaint was that, although they had been given details of their own marks, they were no allowed to see the ratings for others; another was that the supervisors responsible for . .
Cited – Canary Wharf Management Limited v Edebi EAT 3-Mar-2006
EAT Practice and Procedure – striking-out/dismissal
Grievance procedures. Were they complied with? Held not to be in the circumstances of this case. Observations on what counts as compliance and how . .
Cited – O’Dea v ISC Chemicals Ltd CA 4-Aug-1995
Where the performance of union duties stopped a worker from doing the job he was employed for properly, a redundancy selection was possible. Here there was no redundancy comparator for a shop steward spending half his time on union activities. The . .
Cited – Lambe v 186K Ltd CA 29-Jul-2004
The claimant had been dismissed for redundancy, but the company had been found not to have consulted him properly, and he had therefore been unfairly dismissed. The tribunal had then found that even if consulted the result would not have been . .
Cited – Pudney v Network Rail Infrastructure Ltd EAT 22-Mar-2006
EAT Unfair Dismissal: Procedural Fairness/Automatically Unfair Dismissal
The failure to disclose new witness statements obtained during the adjournment of an internal appeal against dismissal was a breach . .
Cited – Drake International Systems Ltd (T/A Drake Ports Distribution Services) v O’Hare EAT 2-Sep-2003
EAT Unfair Dismissal – Compensation. . .
Cited – Mugford v Midland Bank Plc EAT 23-Jan-1997
The court considered the test for reasonableness in a procedure for selection for redundancy. Peter Clarke J said: ‘As to whether a reasonable employer would or would not consult with an individual employee is, it seems to us, essentially a question . .
Cited – King v Eaton Ltd (No 2) IHCS 1998
Employees were made redundant. The tribunal held the dismissals to be unfair because that there had been no consultation worthy of the name with any of the employees and because it was impossible to decide whether the selection criteria had been . .
Cited – T Gover and others v Propertycare Ltd EAT 22-Nov-2005
EAT Unfair Dismissal – Polkey deduction.
The ET had found basic failings in the way the employers had sought to change employment contracts. This led to constructive dismissals and a finding of unfair . .
Cited – Gover and others v Propertycare Ltd CA 28-Mar-2006
The claimants appealed dismissal of their claims for unfair dismissal, on the basis that they had been substantially dismissed as sales agents after rejecting conditions imposed unilaterally by their employers. Their damages had been limited to the . .
Cited – W Devis and Sons Ltd v Atkins HL 6-Jul-1977
The ‘just and equitable’ test warranted the reduction or extinction of compensation for an employee who has been unfairly dismissed and then found to have been liable to summary dismissal. ‘The paragraph does not, nor did s. 116 of the Act of 1971, . .
Cited by:
Cited – Draper v Mears Ltd EAT 5-Sep-2006
EAT The employee was found in a company van about to drive after consuming alcohol. The Tribunal found that to his knowledge, the company had a zero tolerance rule as to driving after consuming alcohol. He was . .
Cited – Premier Foods Plc v Garner EAT 20-Mar-2007
EAT Unfair Dismissal – Reasonableness of dismissal; Procedural fairness/automatically unfair dismissal
Wide-ranging grounds of appeal concerning the standard DDP, automatic unfair dismissal, unfair . .
Cited – BUPA Care Homes (CFC Homes) Ltd v Muscolino EAT 22-May-2006
. .
Cited – Masterfoods (A Division of Mars UK Ltd) v Wilson EAT 7-Aug-2006
EAT Unfair dismissal – Reasonableness of dismissal; Procedural
Fairness/automatically unfair dismissal
Practice and Procedure – Amendment
Employment Tribunal’s conclusion of unfairness could not . .
Cited – Kelly-Madden v Manor Surgery EAT 19-Oct-2006
EAT The employee was the practice manager at a general medical practice. She was dismissed for dishonesty, taking unauthorised pay for overtime hours. She alleged that she had been told by the former practice . .
Cited – City of Bradford Metropolitan District Council v Pratt EAT 9-Jan-2007
bradford_prattEAT2007
EAT Practice and Procedure
Statutory dispute resolution procedures introduced by the Employment Act 2002 – modified grievance procedure – whether employee complied with requirement to set out in writing the . .
Cited – McCall v Northern Rail Ltd EAT 25-Jan-2007
EAT Unfair Dismissal – Reasonableness of dismissal
Practice and Procedure – 2002 Act and pre-action requirements
The Respondent dismissed the Claimant for three reasons. On appeal, two of the most . .
Cited – City of Bradford Metropolitan District Council v Pratt EAT 4-Oct-2006
EAT Practice and Procedure
Statutory dispute resolution procedures introduced by the Employment Act 2002 – modified grievance procedure – whether employee complied with requirement to set out in writing the . .
Cited – Clyde Valley Housing Association Ltd v Macaulay EAT 3-Apr-2008
clyde_macaulayEAT2008
EAT Jurisdictional Points: 2002 Act and pre-action requirements
Statutory grievance procedure. Modified procedure. Whether letter from claimant’s solicitor set out the basis for her grievance. . .
Cited – First West Yorkshire Ltd (T/A First Leeds) v Haigh EAT 20-Nov-2007
EAT Unfair dismissal – Reasonableness of dismissal
Where an employee is long-term absent on grounds of ill health, and his pension scheme contains provisions entitling him to an ill health pension on grounds . .
Cited – Punch Pub Company Ltd v O’Neill EAT 23-Jul-2010
EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
The Employment Tribunal failed to consider the effect of S98A(2) of the Employment Rights Act . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 11 November 2021; Ref: scu.241217