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Statutory Dismissal Procedure

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Another important decision continuing the Alexander v Bridgen line of authorities on the impact of s98A(2) of the Employment Rights Act 1996.

Langstaff J., wading into the disagreement between Elias P. and HHJ McMullen over the meaning of the phrase ' follow a procedure', comes down in favour of the Elias approach (without actually saying so). The EAT upholds the tribunal's decision that a fundamental substantive failure by an employer, in failing to offer suitable alternative employment in a redundancy situation, fell within the definition of 'a procedure' and the employer was allowed to rely on the s98A(2) escape clause so as to prevent the dismissal being unfair (see para. 22).

For some useful guidance on the approach to s98A(2), see paras. 22-24.

Interestingly (and perhaps surprisingly given the inconsistent decisions in this area), Langstaff J. states at paragraph 31 that "the law is clear" and refuses permission to appeal to the Court of Appeal.

Loosley v Social Action for Health