Reversal of Polkey

Last week, I reported Alexander & Hatherley v Bridgen Enterprises, in which the EAT (Elias P. presiding) considered s98A(2) of the Employment Rights Act 1996. This section, which partially reverses Polkey, provides:

"98A(2) Subject to subsection (1) [compliance with the statutory minimum dismissal procedure], failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(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."

In Alexander & Hatherley v Bridgen Enterprises, Elias P. held that s98A(2) enables employers to avoid a finding of unfair dismissal in respect of any breaches of what might otherwise be regarded as a 'fair' procedure, when the employer could establish that the 'fair' procedure would not have saved the employee from dismissal.

On the same day last week, another division of the EAT (HHJ McMullen presiding) handed down a decision holding almost precisely the opposite - see Mason v Ward End Primary School.

HHJ McMullen holds that s98A(2) only rescues employers when the procedural breach amounts to breach of a formal procedure - either one that is written down, or one which has arisen through custom and practice. However, he considers it does not extend to more general breaches of a 'fair' procedure, such as those envisaged by the Acas Code of Practice.

In reaching this decision, HHJ McMullen repeats his views (far more briefly expressed) in Pudney v Network Rail last month, which were regarded by Elias P. at para. 56 of Alexander & Hatherley v Bridgen Enterprises as wrong. However, in this more recent case, HHJ McMullen has set out full reasoning for his conclusion, rather than just asserted a principle.

Thus we are left with two inconsistent - and both, well-reasoned - decisions of the EAT on a very important point of interpretation of s98A(2). As I understand it, neither case is being appealed to the Court of Appeal.