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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Mason v. Ward End Primary School [2006] UKEAT 0433_05_1204 (12 April 2006) URL: https://www.bailii.org/uk/cases/UKEAT/2006/0433_05_1204.html Cite as: [2006] UKEAT 0433_05_1204, [2006] UKEAT 433_5_1204 |
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At the Tribunal | |
On 14 February 2006 | |
Before
HIS HONOUR JUDGE McMULLEN QC
MR R LYONS
MRS J MATHIAS
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR E MALLETT (of Counsel) Instructed by: Ashby Cohen Solicitors Ltd 18 Hanover Street London W1S 1YN |
For the Respondent | MISS E HODGETTS (of Counsel) Instructed by: Birmingham City Council Legal Services Department Ingleby House 11-14 Cannon Street Birmingham B2 5EN |
SUMMARY
Unfair Dismissal: Procedural Fairness/Automatically Unfair Dismissal; Compensation
The reversal of Polkey ...1987) IRLR 503 effected by Employment Rights Act 1996 s98A(2) applies to dismissals occurring on or after 1 October 2004. It applies to a failure to follow a procedure or policy covering dismissal, whether in writing or existing by custom and practice and whether contractual or non-contractual. It does not apply to failure to follow statutory procedures described in s98A(1) and (3). Nor to failure to follow the guidance in the ACAS code or general non-specific failure to follow standards of good employment practice.
Where s98A(2) does apply, so that it is found on the balance of probability that dismissal would have occurred if the procedural failure had not, the dismissal is fair and no compensation is payable. Where the chance of dismissal is less than 50%, the finding will be unfair dismissal and a reduction of compensation of that percentage is appropriate.
HIS HONOUR JUDGE McMULLEN QC
Introduction
The issues
The legislation
"98 General
(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.
98A Procedural fairness
(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if—
(a) one of the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 (dismissal and disciplinary procedures) applies in relation to the dismissal,
(b) the procedure has not been completed, and
(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
(2) Subject to subsection (1), 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.
(3) For the purposes of this section, any question as to the application of a procedure set out in Part 1 of Schedule 2 to the Employment Act 2002, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under section 31 of that Act".
"18. These Regulations shall apply-
(a) in relation to dismissal and relevant disciplinary action, where the employer first contemplates dismissing or taking such action against the employee after these Regulations come into force".
"123 Compensatory award
(1) … the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer".
The facts
"19. Mr Nwosu submitted that it was not the tribunal's function to speculate as to what would have happened had the respondent followed a proper procedure before dismissing the claimant. We respectfully disagree. Following the ruling in Polkey tribunals have been obliged to make such an assessment, and the wording of section 98A expressly requires consideration of what would have happened had proper procedures been followed.
20 Taking the above findings into account we have concluded that, had formal consultation taken place the outcome would have been no different. The respondent would have gone ahead with its decision to close the centre and, there being no suitable alternative position to offer the claimant, would have terminated her contract when it expired on 22 April. Applying section 98(A), we therefore find the dismissal was fair.
21. For the completeness, and having received submissions on the matter from Mr Bear, had Polkey applied, we would have found the dismissal to be procedurally unfair, with a 100% likelihood that the claimant would have been dismissed had a fair procedure been carried out. But in those circumstances, section 98(A) is now applicable with the result that the dismissal was fair". .
The submissions
Discussion and conclusions
Procedural fairness
"But if the likely effect of taking the appropriate procedural steps is only considered, as it should be, at the stage of assessing compensation, the position is quite different. In that situation, as Browne-Wilkinson J puts it in Sillifant's [1983] IRLR 91 case, at p.96:
'There is no need for an "all or nothing" decision. If the Industrial Tribunal thinks there is a doubt whether or not the employee would have been dismissed, this element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment.'"
a. The object in construing a written instrument is to ascertain the intention of its author as expressed in the instrument: Halsbury's Laws of England (4th ed.) vol 44(1) @ 1372. Therefore the object in construing an Act is to ascertain the intention of Parliament as expressed in the Act: ibid.
b. If, on an informed interpretation, there is no real doubt that a particular meaning is to be applied, that meaning is to be taken as its legal meaning: ibid @ 1374,
c. Where the enactment is grammatically capable of one meaning only and, on an informed interpretation of that enactment, the interpretative criteria raise no real doubt as to whether that meaning is the one intended by the legislator, the legal meaning is taken to correspond with the grammatical meaning: ibid@ 1391.
d. The court should presume that the legislator intended common sense to be used in construing the enactment: ibid @ 1392.
e. An enactment must be construed so that significance is given to each component of the Act containing it according to its legislative function ibid@ 1393.
f. A section of an Act is the primary indication of Parliament's meaning and intention, and must be construed, by virtue of the functional construction rule, as a proposition, or series of propositions, consisting of one of more enactments: ibid @ 1398. Further, the way the sections are organised and arranged is to be taken as a reliable guide to legislative intention: ibid.
a. The legislation was ambiguous or obscure or led to absurdity,
b. The material relied upon consisted of one or more statements by a minister or other promoter of the Bill together, if necessary, with such other Parliamentary material as was necessary to understand such statements and their effect and
c. The statements relied upon were clear.
"Up to now, Polkey reductions have been anything up to 100 per cent of the employee's compensatory award. However, in the light of new S.98A(2), a reduction of more than 50 per cent should no longer be possible in a case where the statutory DDP has been completed but where other aspects of the procedure were unfair. Where an employer in such a case can show a greater than 50 per cent chance (i.e. show on the balance of probabilities) that he would have dismissed the employee fairly had a proper procedure been adopted, this should be sufficient to persuade a tribunal that the dismissal was not unfair owing to S.98A(2). In such a case, no Polkey reduction can arise because the tribunal will find the dismissal to be fair, and thus no compensatory award (and, indeed, no basic award) will be payable".
It also follows that we disagree with the statement of principle in Harvey on Employment Law at para 2809. Section 98A(2) is not available to rescue a failing under subsection (1) since, for the reasons we have given above, and in particular by reference to the precedence to be given to subsection (1) by the terms of subsection (2), the procedures there described are different.
Retrospection
Result