Do we need Polkey?

Is
the Government right to propose a ‘no difference’ defence for unfair dismissal
in its Employment Bill? Compiled by Simon Kent

James
Cronin
Employment law consultant, MaST International training and development
consultancy

Many
employers lose at tribunal because they fail to follow a fair procedure when
dismissing an employee. In its Employment Bill, the Government has put forward
its intention to reduce the amount of cases where an employer loses at tribunal
due to a technical breach by reversing the Polkey principle.

This
will mean that failure to comply with procedures set out as the minimum
statutory requirement will not necessarily be fatal to an employer’s case. The
employer will be able to argue that it would have made no difference to the
outcome and the employee would still have been dismissed.

This
raises concerns as the statutory disciplinary and dismissal procedures
envisaged by the Employment Bill arguably offer less protection to employees
than the current Acas Code of Practice on Disciplinary Procedures. A code of
practice is not law, but it tends to be followed by employers. The Bill allows
for an increase in compensation at tribunal where an employer does not have
proper disciplinary procedures in place, and a reduction from an employee’s
damage award where a proper procedure is offered but not used by the employee.

Worryingly
for employers, the Bill sets out to introduce a new category of automatic
unfair dismissal if an employer does not offer an employee a proper hearing.
Therefore an employer will have no defence once a failure to offer or comply
with a statutory disciplinary and dismissal procedure has been demonstrated.

Although
the proposed changes are designed to assist the employer, the concern for SMEs
– who face tribunals all too often – is that many do not have adequate
disciplinary procedures in place now and are not likely to discover the new
automatic sanctions until they are explained to them by the tribunal. To help
them the Government should build flexibility into the system and allow
tribunals to exercise their common sense in taking into account all of the
relevant facts. This would be in preference to making it impose tariffs on
employers as a result of having to find that a dismissal was automatically unfair.

My
concern is that the changes proposed by the Bill will reduce the number of
claims in one area, but increase them in another.

Naomi
Monteiro
UK HR adviser, Kimberley-Clark

For
the safety of the organisation and the well being of employees we would always
follow a version of our procedure in any event, just to make sure we are giving
employees a fair hearing.

However,
in the past it has been irritating to see industrial tribunals pick on a small
procedural issue and say you’ve done it wrong and the whole case is thrown out.

In
my opinion, it is useful that that will no longer happen, but in terms of how
we treat our employees we will still follow our procedures, making sure we talk
to the other person and find out their side of the story.

Gerald
Dawson
Principal consultant, service delivery, RebusHR

The
new guidance relating to disciplinary procedures and Polkey are confusing. The
proposed legislation promotes the use of proper procedures by incorporating
them into employment contracts, but it also says that if an employer would have
dismissed the employee anyway, minor procedural matters can be overlooked.

How
will the employer justify such action without a thorough investigation and
providing the employee with the right to state their case? Many SMEs are coming
to terms with adhering to formal procedures. The introduction of this change
may prove a backward step.

Bill
Fletcher
Assistant Director, Central Personnel Services, Birmingham City Council

The
move may end the ‘nit picking’ cases but in practice it will still be incumbent
on the employer to show that it has acted fairly, even though it may have left
out part of the process.

For
large employers such as ourselves, tribunals would expect us to follow our own
procedures and as a result they would tend to assume the employee’s case is
correct unless the employer can show otherwise. This is particularly the case
in the public sector. Consequently, we would still have to fully justify why we
had missed out any part of our dismissal process in any specific case.

Ronnie
Southerton
Director of human resources, Valtech Ltd

As
an international IT consultancy we like to provide a caring and fair
environment for our employees. We want to be innovative and keep up with
changes in employment practice, but it is important to ensure employees go
through a fair process in all matters. I would therefore ask why revoke the
Polkey principle when it is fair and makes the dismissal process very clear.

There
are occasions when companies may seek compromise agreements that are
financially fair to the individual. Given the choice of keeping the Polkey
principle or introducing the no difference defence, I’d go with the former.

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