Mon, 21 Apr 2014
Russell Bailey considers the circumstances in which a procedural error may lead to a finding of unfair dismissal.
Lawyers and legislators alike have struggled with the issue of whether a finding that there was a procedural shortcoming in the dismissal process, which would not have avoided the dismissal, should lead to a finding that the dismissal was fair or unfair. The general thrust of Polkey v A E Dayton Services Ltd  IRLR 112 is that procedural unfairness should lead to a finding of unfair dismissal and the subsequent statutory reversal of that principle was short-lived.
In certain circumstances an employer can avail itself of the principle that the range of reasonable responses test applies to procedural as well as substantive matters (Sainsbury’s Supermarkets Ltd v Hitt  IRLR 23). However, that principle applies where an employer has deliberately adopted a certain process rather than where it has made an error by, for example, failing to carry out one of its processes.
Employment Tribunal ruling
It should not be forgotten, however, that in Polkey the House of Lords did leave open a window for argument that not every procedural mishap will lead to a finding that the dismissal was unfair. That window was successfully relied on in Manning v London Central Bus Company Ltd UKEAT/0103/13/DM.
Mr Manning was a bus driver with 23 years’ service who was dismissed on grounds of incapacity. He had developed a condition affecting his feet, which made it unsafe for him to continue to drive buses. The employer carried out a proper investigation into his condition, holding interviews and obtaining medical evidence. The employer had an internal process whereby all managers who might be involved in making dismissals or hearing appeals were distributed with a weekly list of all outstanding vacancies so that they could be considered and discussed at the appropriate meetings. Mr Manning contended, amongst other matters, that the lists of vacancies had not been discussed with him at the dismissal hearing or at the appeal hearing.
The tribunal found that the dismissal had been substantively and procedurally fair and found as a fact that the list had been discussed with Mr Manning at the dismissal hearing. However they found as a fact that the list had not been discussed with him at the appeal hearing. Despite finding that none of the vacancies on the list were suitable vacancies that Mr Manning could have performed, they decided that this procedural error rendered an otherwise fair dismissal unfair. Given his length of service the basic award was £10,000. The employer appealed.
At the EAT the employer relied upon Westminster City Council v Cabaj  IRLR 399. In Cabaj, Morritt LJ had carefully formulated the Polkey exception test as whether the procedural defect denied to the employee an opportunity of showing that the employer’s reason for dismissal was an insufficient reason for the purpose of S.98(4). Of course, it could not be said that an omission to discuss a list of unsuitable vacancies with the employee denied him the opportunity of showing that his incapability was not a sufficient reason to dismiss. Applying Polkey, it served no useful purpose. The appealed was allowed and a finding that the dismissal was fair was substituted.
Since it is a Court of Appeal decision, Cabaj can be a useful tool in the employer counsel’s armoury to overcome procedural mishaps, particularly since it has been applied so recently in Manning. Many, perhaps most, procedural errors could not really be said to deny the employee the opportunity of showing that the employer’s reason was not a sufficient reason to dismiss. The Polkey exception may be wider than some commentators perceive.
Russell Bailey was counsel for London Central in the employment tribunal and in the EAT.
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