DISPUTES CONSULTATION
Following a wide-ranging review of the statutory disputes procedures, the Government announced a consultation earlier this year to review the way employment disputes are resolved (see weekly LELR 10). It has now published a supplementary review relating solely to procedural unfairness in unfair dismissal.
Working on the basis that the dispute resolution procedures will be repealed, the document sets out three options:
- Go back to the position before the introduction of the 2004 procedures. In this scenario, section 98A would be repealed and the decision in Polkey v AE Dayton Services 1987 would be reinstated.
- Repeal section 98A as above, but allow tribunals to make alternative findings “reflecting the balance of procedural and substantive unfairness in the dismissal”. This would allow tribunals to make a finding that a dismissal was procedurally unfair but substantively fair, and award compensation accordingly.
- Reverse the Polkey decision in full and repeal the sections making dismissal automatically unfair.
The Government supports the second option, and has asked for all responses to be sent in by 20 June. The first option is the best on offer, since it restores the position to what it was prior to dispute resolution. However, it is unfortunate that the DTI once again refuses to consider a fundamental review of unfair dismissal law and especially the “range of reasonable responses” test.
To download the document (entitled “Supplementary review of options for the law relating to procedural fairness in unfair dismissal”), go to:
www.dti.gov.uk/files/file39477.doc