Mason-v- Ward End Primary School

At virtually the same time that the employment appeal tribunal (EAT) was coming to its decision in Alexander and anor -v- Bridgen Enterprises Ltd, another EAT had come to a different conclusion.

It said in Mason -v- Ward End Primary School (2006, IRLR 432) that section 98A(2) of the Employment Rights Act 1995 could only rescue employers where there had been a breach of a formal procedure.

What were the basic facts?

Ms Mason had a three-year contract as a learning centre support manager, which came to an end when she was made redundant. Her employer did not meet or consult with her.

The tribunal decided that, although her employer had not followed a fair procedure, there were no suitable alternative jobs to offer her. She would have been dismissed, whether or not they had consulted.

It said that the dismissal was therefore fair because section 98A(2) applied. Even if it had found the dismissal procedurally unfair, it would have reduced her compensation by 100 per cent.

What did the parties argue on appeal?

Ms Mason argued that the tribunal should not have considered section 98A(2) because it did not come into force until after her dismissal. She also argued that even if it was applicable, employers could only rely on it if they had followed the statutory dismissal and disciplinary procedures.

The employers argued that section 98A(2) applied because the normal rule (that statutory provisions are not retrospective) was only relevant when there was a substantive change in a person’s rights. That was not the case here.

What did the EAT decide?

The EAT said that section 98A(2) could only rescue employers where there was a breach of a formal procedure. Something that was “written or unwritten, contractual or non-contractual, contained in an agreement or a policy which relates to dismissal of employees and which has not been followed”.

That also included disciplinary procedures which were not contractually binding and procedures established by custom and practice, such as “last in first out” in a redundancy situation.

It did not, therefore, apply to breaches of the statutory dismissal procedure, and the tribunal was wrong to find that it applied to Ms Mason’s dismissal.

Nor did the 2004 ACAS Code of Practice on Disciplinary and Grievance Procedures fall within section 98A(2), as this was not in itself “a procedure”.

In any event, it said that section 98A(2) only applied to dismissals taking effect on or after 1 October 2004, and since the dismissal in this case occurred before that, the tribunal should not have taken it into account. The appeal would therefore be allowed and a finding of unfair dismissal substituted.

The employment tribunal was, however, entitled to conclude that her compensatory award could be reduced by 100 per cent. There was a genuine redundancy situation and she would still have been dismissed, whether she had been consulted or not. The case was remitted to the tribunal to decide the date on which she would have been dismissed fairly, had she been consulted.