Employers must ensure they have a thorough understanding of the broad scope of statutory disciplinary and dismissal procedures, otherwise they risk facing unexpected claims of automatic unfair dismissal, warns employment law expert Guy Guinan.

It has been reported that the government intends to scrap the controversial statutory disciplinary and dismissal procedures, but what they will put in their place is still uncertain. One thing that can be relied upon, however, is that at least in the immediate future the statutory procedures are going to continue to cause some major headaches for employers.

At the core of the standard disciplinary and dismissal procedure is the need to make sure that the employee is fully aware of the allegations they face and has the opportunity to respond.

Schedule 2 of the Employment Act 2002 sets out the standard and modified procedure and expressly provides that a disciplinary hearing should not be held until the information upon which the allegations are based has been given to the employee and they have been allowed the opportunity to consider the information provided, as well as to respond to it.

Left in no doubt

Whilst in a number of cases the employer may feel sure that the employee is fully aware of the details behind the allegations, best practice should be to leave no doubt as to the fact the employee has been given full information prior to the meeting.

The recent case of Bowen v Millbank Estate Management Organisation 2007 demonstrates that failing to do so may lead to a finding of automatic unfair dismissal on the grounds that the statutory procedures have been breached.

In brief, the facts were that Ms Bowen had been suspected of misconduct and was then invited to a disciplinary hearing. The first meeting was postponed to allow for her to arrange to be accompanied. Only at the start of the following meeting was Ms Bowen given details of the investigation and copy statements. The allegations were discussed and, at her request, the hearing adjourned to allow her to make some further representations in writing. At the reconvened meeting it was decided to dismiss Ms Bowen for gross misconduct.

This was held to be an automatically unfair dismissal. It was found that at the meeting she had been given insufficient material to know the case against her or to prepare her response. There was therefore a breach of the statutory dismissal procedure. The fact that the meeting was reconvened at a later date did not rescue the situation.

When statutory procedures apply

The statutory dismissal and disciplinary procedures apply to dismissals and relevant disciplinary action. However, the most common form of disciplinary action is expressly excluded from their scope in that oral and written warnings and paid suspension are outside the definition of relevant disciplinary action. Therefore, where considering action short of dismissal the statutory procedures only apply in the relatively rare instances where demotion or unpaid suspension is considered appropriate.

In relation to dismissals, it is commonly thought that the statutory procedures do not apply during the first year of employment, because generally the employee will have insufficient service in order to bring a claim for unfair dismissal.

However, there are a number of exceptions to the one year minimum service qualification requirement. In the case of RKS Services v Palen 2007, Mr Palen had been appointed as a delivery driver but in his second week of employment he took a day off as his partner, Miss Hall, was taken ill and went to hospital. On his return the employer told him a small company could not afford for people to be taking time off in that fashion and he was dismissed.

It was held that he had been unfairly dismissed in connection with taking time off to care for a dependant, and that in those circumstances he did not need a year’s service. In addition it was ordered that the compensatory award should be uplifted by 30 per cent to reflect the employer’s failure to follow the statutory dismissal procedure.

Action points

Managers need to be aware that there is a risk, following any dismissal, that the employee will argue that the reason was related to one of those situations where a year’s service is unnecessary. In the absence of documented evidence, who the tribunal will believe cannot be forecast with any degree of certainty. In the Palen case, the employer had claimed that the reason for dismissal was that the employee had damaged the delivery van. However, this was not accepted by the tribunal.

Best practice would be to ensure that the basic requirements of the statutory dismissal procedure are followed in every case. HR departments should ensure all management are made aware of the key stages of the procedure and the importance of providing information early enough to allow the employee the opportunity to prepare themselves prior to the meeting.

Guy Guinan is an employment partner in the London office of Halliwells LLP.