Polkey Reduction

Although the case originally concerned procedural unfairness ,it has also been used recently in cases of substantial unfairness, for example, if dismissal for a different (fair) reason would have occurred anyway at a later date 3 .
Part 3 of the Employment Act 2002 established a framework for promoting the resolution of employment disputes in the workplace and the detail of how the procedures would operate in practice was set out in the Employment Act 2002 (Dispute Resolution) Regulations 2004 which were made on 12th March 2004. Both the remaining provisions of Part 3 of the Act and the Regulations came into force in October 2004. 4This Act was responsible for producing a certain statutory procedure to be followed in the circumstances set out in the Regulations.
These two pieces of recent legislation will affect the way that unfair dismissal cases are judged in that is there will be a sort of a "Polkey reversal" .The law as it stood in the previous Act for a dismissal to be fair, the employer had to show that it there was a potentially fair reason for dismissal5 .For this law to apply the dismissal itself had to be reasonable given the circumstances.6 The Polkey decision seemed to cause employment tribunals to put undue weight on procedure rather than the substance of the decisions and this was a very fair criticism given the case law that was generated.However section 34 of the new Act inserts 98A into the Employment Rights Act 1996. The effect of this will be that if an employer dismisses an employee without the correct dismissal and disciplinary procedure this would amount to an unfair dismissal totally.
Also now the aggrieved employee would receive a minimum of four weeks’ pay as compensation where he or she was found to have been unfairly dismissed and the relevant procedure has not been followed. It should also be noted that that the tribunals do not have to take into account the failures by employers to take procedural actions outside the framework of the relevant dismissal and disciplinary procedure, provided that following such additional procedural actions would have no effect on the decision to dismiss. Also the dismissal may at times still be found unfair under this legislation even if the employer strictly followed the dismissal procedure and yet the reason for dismissal is not potentially fair.
3. The effect of case law since the Dispute Regulations (above) on the ‘polkey reduction’.
There has been a lot of case law since these regulations and there was particular confusion as to the meaning of the "procedures". The very recent case in the Employment Appeal Tribunal (EAT) in the case of Kelly-Madden v Manor Surgery 7 has ended the confusion following these regulations under section 98A(2) of the Employment Rights Act (hereafter section 98A(2)) which has also been dubbed as a ‘Polkey 2 reversal’ and was very controversial when it came out in 2002.
In the cases of Alexander v Bridgen Enterprisesand Mason v Governing Body of Ward End Primary School (see below)8 EAT adopted two conflicting approaches to the construction of 98