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Working practice (1)

In the first of three articles, Matthew Bradley explores the unfairness of procedural fairness, with regard to s 98A of the Employment Rights Act and Polkey

2 December 2005

Section 98A of the Employment Rights Act, as inserted by the Employment Act 2002 (EA 2002), came into force on 1 October 2004. It deals with "procedural unfairness" in unfair dismissal and provides as follows: "(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if: (a) one of the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 (dismissal and disciplinary procedures) applies in relation to the dismissal; (b) the procedure has not been completed; and (c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements. (2) Subject to subsection (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedur...

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