In Mr E Ho v The University of Manchester, the EAT have followed the decision in Kelly-Madden v Manor Surgery that where an employer fails to follow the (now repealed) statutory dismissal procedure, it is not open for it to argue that failing to follow the procedure made no difference and therefore the dismissal is fair.
However, it is open to the employer (in accordance with the normal principles of Polkey) to argue that although the dismissal was unfair, the dismissal would have occurred in any event and therefore the compensatory award should be reduced.
What’s the difference between the two? The distinction is relatively subtle, as the effect of both is there may be little or no compensatory award but if the dismissal was fair there would be no basic award and no possibility of any compensatory award. If the dismissal is unfair there is a basic award (and indeed a minimum 4 week one) as well as the potential for a compensatory award even if only a small one.