Law queries

One of our members was summarily dismissed for being late. Although we accept that he had a bad record for attendance we think that there should have been a hearing first, particularly since the disciplinary procedure provides for one. Can the dismissal be challenged at an employment tribunal on the ground that the employers did not follow the procedure?

Tribunals can look at whether an internal disciplinary procedure has been followed in deciding on an unfair dismissal complaint.

In one recent case the Employment Appeal Tribunal (EAT) confirmed that a tribunal could conclude that the employer acted reasonably in dismissing the employee if, in exceptional circumstances, following the procedure would have made no difference.

However, the tribunal cannot, in looking at whether or not an employer has acted reasonably, ask the hypothetical question as to whether it would have made any difference to the outcome had the appropriate procedural steps been taken. The House of Lords established this principle in the Polkey case although the government now wants to remove the protection.

* More information: Kontor-Manu v Direct Table Produce EAT/927/00; Polkey v AE Dayton Services [1987] IRLR 503