Failure to follow procedures

Case 4: The facts

Following an allegation of assault, Mr Pudney was dismissed based on witness statements which he was not shown, meaning that he did not have all the charges against him.

A tribunal rejected his unfair dismissal claim on the grounds that, even if he had seen the statements, he would still have been dismissed.

The ruling

Where there is a failure to follow a fair procedure, the Employment Appeal Tribunal (EAT) said, a tribunal should consider section 98A(2) of the Employment Rights Act 1996; this says a procedurally unfair dismissal is not unfair if the employer can show that the failure to follow a fair procedure made no difference.

But this applies only if the failure to follow the procedure is the sole reason for the dismissal’s unfairness – which was not the case here, the EAT said. It is unreasonable for a dismissal to be based on material that is not disclosed to the employee or on which s/he does not have the opportunity to comment, so Pudney’s dismissal was unfair.

Pudney v Network Rail Infrastructure Ltd UKEAT/0707/05