Employment4 min read28 April 2026

I Was Dismissed Without Any Procedure — Does That Make It Unfair?

Based on: Polkey v AE Dayton Services Ltd [1987] UKHL 8 · View judgment

The Scenario

A van driver of 4 years was called into the office and told he was redundant immediately with no prior warning, no consultation, and no appeal. The employer claims the lack of process makes no difference because redundancy was inevitable.

The Conversation

This is how Case Buddy would handle this scenario — the same experience you get on the platform.

You

I worked as a van driver for four years. Last month my manager called me in and said I was being made redundant with immediate effect. There was no warning, no meeting beforehand, no chance to put my case, and no appeal. When I said this seemed unfair, my employer said it did not matter because I would have been made redundant anyway — there was nothing I could have said to change the outcome. Can they do that?

Case Buddy

Thank you for explaining this. It sounds like the redundancy came completely out of the blue, with no procedural steps at all. To make sure I understand your position — were there other people who were also made redundant at the same time, or were you the only one selected? And do you know whether your employer has fewer than 20 employees, or more?

You

It was just me. I was the only van driver being let go. There are about 15 employees in total. My employer keeps saying it does not matter how they did it because I would have been made redundant anyway.

Case Buddy

Here is the legal position: **Was the dismissal procedurally fair?** Under Section 98(4) of the Employment Rights Act 1996, even where there is a genuine reason for dismissal (such as redundancy), the employer must also act reasonably in the manner of dismissal. Procedural fairness matters. An employer who fails to: - Warn the employee that they are at risk - Consult with the employee about the decision and alternatives - Allow the employee to make representations - Offer a right of appeal ...is likely to have acted unreasonably, making the dismissal **procedurally unfair**. **The "would have been dismissed anyway" argument:** This refers to the so-called *Polkey* principle, named after the House of Lords decision in *Polkey v AE Dayton Services [1987]*. The House of Lords held that procedural failures do not automatically make a dismissal unfair — the tribunal must consider whether following a fair procedure would have made any difference. However, the *Polkey* principle does not mean the employer can dismiss without any procedure and then argue it made no difference. The principle operates at the **compensation** stage, not the liability stage: - First, the tribunal decides whether the dismissal was **fair or unfair** (was the procedure reasonable?) - If the dismissal was unfair, the tribunal then considers **Polkey reduction** — whether following a fair procedure would or might have made any difference, and reduces compensation accordingly **Your position:** With four years of service, you are entitled to bring an unfair dismissal claim. The complete absence of any procedure strongly suggests the dismissal was procedurally unfair. Your employer’s argument that "the outcome would have been the same" is a Polkey argument that may reduce your compensation but does not defeat the claim entirely. **Time limit:** Contact ACAS for Early Conciliation within 3 months less one day from the date of dismissal. *This is legal information, not legal advice. For advice specific to your circumstances, consult a qualified solicitor.*

The Correct Legal Position

•Under s.98(4) ERA 1996, even where there is a genuine reason for dismissal, the employer must act reasonably in the manner of dismissal.
•Failure to warn, consult, take representations, or offer appeal makes a dismissal procedurally unfair.
•The Polkey principle (from Polkey v AE Dayton [1987] UKHL 8) means that a fair procedure that would not have changed the outcome may reduce compensation — but does not defeat the unfair dismissal finding at the liability stage.
•Polkey operates at the remedies stage, reducing compensation by the percentage chance the outcome would have been the same with a fair procedure.

What the Court Decided

The House of Lords in Polkey held that procedural failures should be taken into account in determining whether a dismissal was unfair, but that a fair procedure which would not have changed the outcome should be reflected in reduced compensation, not a dismissal of the claim. The employee's unfair dismissal claim succeeded, with compensation reduced to reflect the chance of the same outcome.

Important: This case study is for educational purposes only. Case Buddy provides legal information, not legal advice. Every situation is different — for advice specific to your circumstances, consult a qualified solicitor. Free advice is available from Shelter (housing), ACAS (employment), and StepChange (debt).

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