s98A Partial reversal of Polkey

The EAT has handed down another decision dealing with the controversial interpretation of s98A(2) of the Employment Rights Act 1996.

This provision, often referred to as the partial reversal of Polkey, states that "a failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded...as by itself making [the dismissal unfair] if he shows that he would have decided to dismiss the employee if he had followed the procedure." This defence can only be invoked if the employer has complied with the statutory dismissal procedure.

Earlier this year, two divisions of the EAT handed down two judgments dealing with what was meant by 'a procedure'.

In Alexander & Hatherley v Bridgen Enterprises, Elias P. held that the word 'procedure' applies to any procedural failing, including (say) general breaches of the Acas Code of Practice. By contrast, in Mason v Ward End Primary School, HHJ McMullen adopted a narrower approach, holding that procedural defects which were capable of being ignored by virtue of s98A(2) applied only to formal procedures, such as those incorporated into a contract or handbook.

In a judgment handed down this morning, the EAT in Kelly-Madden v Manor Surgery has "diffidently" preferred the approach in Alexander v Bridgen. Elias P., giving the judgment, explains why he believes parliament intended the partial reversal of Polkey to be wider rather than narrower (paras. 34-49).

The position remains that there is a conflict of authorty on this very important issue. Clarification from the Court of Appeal, please...

Kelly-Madden v Manor Surgery

[Thanks to Rebecca Thomas, Counsel for the employee, who referred me to this decision]