Review of law on procedural fairness in unfair dismissal
The Department of Trade and Industry has published
a supplementary review of options for changes to the law relating to
procedural fairness in unfair dismissal, following recommendations from an independent
review that the statutory dispute resolution procedures should be scrapped.
This is to accompany the consultation (published in
March 2007) on changes to the way that workplace disputes are
resolved.
The review sets out three options:
To reinstate the pre-2004 Polkey position by repealing in
full the Employment Rights Act 1996, section 98A (which provides that dismissal
following failure to follow a procedure other than one of the statutory
dismissal procedures will not affect the fairness of the dismissal if the
employer can show that it would still have dismissed had the procedure been
followed). The result would be that procedural failings would normally render a
dismissal unfair, but compensation could then be reduced in proportion to the
likelihood that the dismissal would have gone ahead anyway.
To repeal in full the Employment Rights Act 1996, section 98A, but
provide for alternative findings that reflect the balance of procedural and
substantive unfairness in the dismissal. This would allow tribunals to make the nature
of the finding clearer by distinguishing between dismissals that are unfair on
procedural and substantive grounds. Thus there could be a finding that a
dismissal was procedurally unfair but substantively fair, in which case a
penalty could be imposed according to a scale with a low cap.
To repeal the parts of section 98A relating to the
statutory procedure but retain section 98A(2). This would, in practice, reverse the Polkey decision and revert to the
'no difference' rule, which established that, where there was a
procedural irregularity in an otherwise fair dismissal, but it could be shown that
carrying out the proper procedure would have made no difference to the outcome, the
dismissal would be fair.
The Government
has expressed a preference for the second option.
The closing date for
responses is 20 June 2007.
DTI Consultation
on Resolving Disputes in the Workplace: Supplementary review of options for the
law relating to procedural fairness in unfair dismissal (Microsoft Word format,
64K) Read the review on the DTI website.
Resolving disputes in
the workplace - a consultation Read
the consultation on the DTI website.
