PROCEDURAL UNFAIRNESS

Mason v Governing Body of Ward End Primary School

EAT: Judge McMullen QC, Mr R Lyons and Mrs J Mathias: 12 April 2006

The claimant was dismissed by reason of redundancy in April 2004, when her fixed term contract was not renewed. On her claim of unfair dismissal, the employment tribunal held that, although consultation prior to the claimant's dismissal had been inadequate, the employer would still have dismissed the claimant following proper consultation, and that, applying section 98A(2) of the Employment Rights Act 1996, the dismissal was fair. The tribunal went on to find that, had it found the dismissal to have been unfair, it would have held that there was 100% chance that the claimant would, in any event, have been fairly dismissed.

The claimant appealed, contending, inter alia, that section 98A(2) did not apply to dismissals before it came into force on 1 October 2004.

The Employment Appeal Tribunal held:
When applied, section 98A(2) of the Employment Rights Act 1996 took away an employee's right to a declaration of unfair dismissal and replaced it with an entitlement in the employer to a declaration that the dismissal was not unfair. Accordingly, section 98A should not be applied retrospectively unless that was unavoidable on the language used, and, as clear words had not been used, the subsection applied only to dismissals taking effect on or after 1 October 2004.

Per curiam. (i) The breaches of procedure to which section 98A(2) applies are not breaches of the statutory dismissal procedures, but of procedures of the kind that any reasonable employer would follow before dismissing an employee in the circumstances. Policies relating to equal opportunities, job security and whistle blowing are widespread and are apt to fall within section 98A(2). Procedures established by custom and practice are also included.

(ii) A finding under section 98A(2) is to be made on the balance of probabilities. If it is more likely than not that the employee would have been dismissed, no compensation is awarded at all since section 98A(2) makes the dismissal fair. It is no longer necessary for a percentage to be fixed.

The appeal was allowed and the case remitted for the tribunal to determine at what date the claimant would have been dismissed fairly had she been consulted.

Appearances: Edward Mallett (Ashby Cohen Solicitors Ltd) for the claimant; Elizabeth Hodgetts (Birmingham City Council Legal Services Department) for the employer.