Many employment judges regard the frequently made distinction between procedural and substantive unfairness as artificial and there is judicial authority to support that view.
Now that the ill-fated Employment Act 2002 (Dispute Resolution) Regulations 2004 (which imposed mandatory procedures) have been scrapped, the hoops which an employer needs to get through to avoid a finding of unfair dismissal or facing increased compensation are not as onerous as they were.
Employers can also rely on section 98A(2) of the Employment Rights Act 1996 which provides that:
…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) [need to act reasonably in all the circumstances] 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.
However, what happens if an employer doesn’t raise this point specifically at an employment tribunal hearing. This was the issue for the Court of Appeal in Salford Royal NHS Foundation Trust -v- Roldan (13 May 2010). The appellant, a Filipino nurse, was recruited from Singapore and employed by the Trust from 2003 until she was summarily dismissed for gross misconduct in October 2007. It was alleged that she had ill-treated a patient. An appeal by way of a re-hearing was unsuccessful.
The consequences for her were severe. There was a police investigation and in addition to losing her job, she also lost her work permit and the right to remain in the United Kingdom. She was prosecuted but acquitted.
Employment lawyers often refer to a Polkey dismissal (after the House of Lords case of that name) which concerns what should happen if, where they have not, dismissal would hav been the result had fair procedures been followed. Put as simply as possible, if an employer satisfies an employment tribunal on the balance of probabilities that an employee would have been dismissed even if fair procedures were applied, the dismissal must be held to be fair. If there was a chance of a fair dismissal in such circumstances but less than a 50% chance, the dismissal should be found to be unfair but compensation can be reduced to take account of the possibility of a fair dismissal.
In Ms Roldan’s case the employment tribunal found that the procedure applied was unfair and that the dismissal was unfair. At a remedy hearing, the tribunal refused to apply a Polkey reduction because there was no evidence to suggest that dismissal would have followed if correct procedures were followed. The tribunal also refused to hear an argument on behalf of the employer concerning the application of section 98A(2) (above) because it had not been raised at the main hearing.
The Employment Appeal Tribunal disagreed and found that the alleged procedural failings did not in themselves establish unfairness. The EAT also took the view that the tribunal should have considered section 98A(2) and allowed further evidence from the Trust.
The Court of Appeal has disagreed with the EAT and restored the decision of the tribunal. The tribunal was entitled to conclude that the dismissal was unfair. Justification of the tribunal’s decision was reinforced by seriousness of the consequences for Ms Roldan (A -v- B  IRLR 405 (EAT)). Perhaps the most important part of the decision is that the Court of Appeal decided that the tribunal was right not to consider submissions or further evidence concerning the possible application of section 98A(2). This should have been dealt with at the initial hearing and there was no error of law in the tribunal’s refusal to revisit the issue.
The case reinforces the need to make sure that all relevant submissions are dealt with at the tribunal hearing. In all cases in which the employer may be vulnerable from a procedural perspective, section 98A(2) must be raised in the course of the main hearing; otherwise it can be expected that the opportunity to do so will be lost.