Failure to follow an agreed procedure

Where there is an agreed disciplinary procedure and an employer fails to follow it, for example, failing to work through several stages of appeal, or treating an issue as one of “misconduct” as opposed to “capability”, a dismissal can be unfair (Stoker v Lancashire CC [1992] IRLR 75).

However, a finding that a dismissal was procedurally unfair can be a hollow victory where the tribunal goes on to conclude that dismissal would probably have happened anyway, if a fair procedure had been followed. The well-known case of Polkey v Dayton Services Limited [1087] IRLR 503 has established that where a unfair procedure has been used, a tribunal can reduce the compensation awarded to reflect the likelihood that dismissal would have taken place in any event if a fair procedure had been followed. In these circumstances, compensation is likely to be limited to lost earnings for the amount of time if would have taken to complete a fair procedure — usually a matter of weeks.

From the perspective of the individual member’s claim, it is best to concentrate the most effort on those procedural deficiencies that might have made a real difference to the final outcome, for example, failure to interview or allow cross-examination of a crucial witness, or failing to invite the accused employee and rep to a key reconstruction (see Chapter 4: Investigation). Note that sometimes procedural defects can be corrected on appeal (see Chapter 10: Appeals).