PROCEDURAL UNFAIRNESS

Kelly-Madden v Manor Surgery

EAT: Elias J (President), Mr P Parker and Baroness Prosser: 19 October 2006

The claimant, the practice manager for a general medical practice, was suspected of authorising overtime payments for herself without consulting the practice partners. Following an investigation and disciplinary hearing she was dismissed for dishonesty and her dismissal was upheld on appeal. On her complaint of unfair dismissal, an employment tribunal decided that, although the disciplinary process was flawed, in that the claimant's contention that one of the partners had checked the overtime payments had not been investigated, and the subsequent appeal had not rectified the failures in the original investigation, it was reasonable for the partners to have formed the view that by taking overtime payments without authority the claimant was in breach of her position of trust; that, even if a proper procedure had been followed, she would have been dismissed; and that the dismissal was fair.

The claimant appealed, contending, inter alia, that section 98A(2) of the Employment Rights Act 1996 had no application, as the employer had not adopted any "procedure in relation to the dismissal of an employee".

The Employment Appeal Tribunal held:
The reference to "a procedure" in section 98A(2) of the Employment Rights Act 1996 was without limitation and not qualified by referring to a procedure which the employer had adopted or habitually used, and the use of the phrase "by itself" simply recognised that, even if the employer could show that the employee would still have been dismissed had proper procedures been applied, it did not mean that the dismissal would always be fair, since it might be unfair quite independently of the procedural defects. The tribunal had been entitled to find that, even had procedures been properly complied with, the result would have been the same and, accordingly, applying section 98A(2), the finding that the dismissal was fair had to be upheld.

The appeal was dismissed.

Appearances: Rebecca Thomas (Bar Pro Bono Unit) for the claimant; David Kelly, representative (Peninsula Business Services Ltd, Manchester), for the employer.