In March the DTI published the consultation entitled ‘Success at work: Resolving disputes in the workplace’ seeking the proposed repeal of the Statutory Dispute Resolution. For more information please see our March 2007 briefing note: “End of the road for the Statutory Dispute Resolution Procedures?”. The DTI has now published a ‘supplementary review of options for the law relating to procedural fairness in unfair dismissal’. The review sets out three options:

Option A

Return to the position prior to the introduction of the Dispute Resolution Regulations. Procedural failings would ordinarily render a dismissal unfair, but a tribunal could reduce compensation in proportion to the likelihood that, if the correct procedure had been followed, the employee would have been dismissed in any event (the “Polkey” doctrine).

Option B

As above, but provide for ‘alternative findings reflecting the balance of procedural and substantive unfairness in the dismissal’. Under this option, a tribunal could find that a dismissal was procedurally unfair but substantively fair, and make an award of compensation to reflect this.

Option C

Reverse the Polkey decision in full and revert to the “no difference” rule. Under this option, procedural fairness would be governed by the “no difference” rule - if there is a procedural failing in a dismissal which would otherwise have been fair, and the employer can show that following the correct procedure would have made no difference to the outcome, the dismissal will be deemed fair. From an employer’s point of view Option C would be preferable to avoid purely procedural unfair dismissal findings be found. In the review, the government expresses a preference for Option B, but does not offer any further details about how the proposal for ‘alternative findings’ would operate in practice.

The closing date for responses is 20 June.