Kelly-Madden v Manor Surgery, EAT, 19 October 2006
It was alleged that Kelly-Madden had dishonestly paid herself overtime payments. She claimed that her predecessor had informed her verbally that she would be entitled to overtime payments, and that one of the partners had checked her salary payments, including the overtime payments. The truth of these statements remained unchecked prior to dismissal and, on appeal, Kelly-Madden claimed unfair dismissal.
As long as any applicable statutory dismissal and disciplinary procedure (DDP) has been followed, a failure by an employer to follow an additional procedure “will not by itself make the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure”.
This provision has been the subject of some debate at Employment Appeal Tribunal (EAT) level. In one case, the EAT held that ‘a procedure’ referred to any fair procedure that the employer would be expected to follow, including the Acas Code of Conduct for Disciplinary Procedures, while on the same day, another division of the EAT held that it only applied to a breach of the employer’s own internal procedures.
The tribunal thought the procedure unfair (although the DDP had been followed) because Kelly-Madden’s statements had remained unchecked, making the investigation inadequate. The EAT concluded, however, that, had the procedure been fair, the decision to dismiss would have been the same. Kelly-Madden appealed.
Kelly-Madden argued that the ‘no difference’ test only applied where the procedural failings related to internal procedures. Since the surgery had no internal disciplinary procedures, she argued, the tribunal should have found the dismissal unfair. The EAT disagreed, holding that ‘a procedure’ referred to any procedure. The appeal was dismissed.
Comment As long as employers follow a DDP, a failure to take further procedural steps will not render the dismissal unfair if the employer proves that the failure made no difference. However, the burden of proof is on the employer, and this should by no means be viewed as a signal that they may ignore either the Acas code of conduct, or their own internal procedures.