The outcome of employment tribunal cases can have a significant impact on the HR function. Guy Guinan, an employment partner at national law firm Halliwells, has highlighted some key cases from the last three months and their possible implications for employers.

Alexander & Hatherley v Bridgen Enterprises 12 April
This case gives valuable guidance on the application of the statutory dismissal procedure in a redundancy situation.

Facing a redundancy situation the employers called a first meeting at which all employees were informed that there would be up to 10 redundancies. At a second meeting the employees were told of the selection criteria but not the guidelines on how the assessments were to be carried out.

At a third meeting they were informed that they had been selected for redundancy, given details of the redundancy package and told that they had the right to appeal.

The employees claimed that the employer had not complied with the statutory dismissal procedure. The Employment Appeal Tribunal agreed and took the opportunity to set out the steps that are needed in a redundancy situation.

• The first step is that the employer must set out in writing in broad terms the grounds which lead to dismissal being contemplated and invite the employee to a meeting.
• The second step is for the employer to provide sufficient information for the employee to be able to put their side of the story. In a redundancy situation that means the employee should be given the selection criteria and their assessment prior to the meeting.
• The third step is to inform the employee of the decision and to provide a right to appeal against the decision.

HR need to ensure that the employees are given all the information relating to their selection at a time which enables them to prepare for the meeting. Consider treating the basis of the selection in the same way as evidence of misconduct is treated prior to a disciplinary hearing.

Stewart v Moray Council 20 April
The case sets out the requirements for a valid pre-existing agreement under the Information and Consultation of Employee Regulations (the ICE Regulations).

The ICE Regulations came into force on 6 April 2005 but a staggered implementation timetable means that only companies with at least 150 employees are currently affected. Companies with 100 or more employees will be affected by April 2007 and those with fifty or more employees by April 2008.

The Regulations provide that a compulsory consultation process is triggered should 10% of the workforce make a request for an information and consultation arrangement.

However the actual process that an employer is required to follow is dependent upon whether or not there is a pre-existing information and consultation agreement. If there is then the employer can opt to hold a ballot to determine whether the workforce endorses the request.

If there is no agreement in place the employer is required to enter into negotiations for an information and consultation agreement or risk that one will be imposed.

In this case a request for a negotiated information and consultation arrangement had been made and the legal issue was whether the Council’s current staff council arrangement amounted to a valid pre-existing agreement.

It was held that whilst the agreement covered all the employees and their interests were supported by elected union representatives the agreement did not set out how information was to be given to employees or how representatives could communicate their views. It just provided that there would be a forum for discussion and consultation. This was not sufficient.

HR should review their own information and consultation agreement to ensure that the practical arrangements concerning the exchange of views and information are recorded.

Taylor v OCS Group 31 May
This case gives important guidance on the circumstances when mistakes in disciplinary proceedings can be corrected.

Mr Taylor was a deaf IT analyst. It came to light that he had remotely gained access to a colleague’s pc and redirected her confidential e-mails. He was called to a disciplinary hearing at which he was dismissed for gross misconduct. The decision was confirmed at appeal.

Taylor claimed unfair dismissal and disability discrimination. The Tribunal found that the dismissal had been unfair as Mr Taylor’s deafness had led to him being unable to participate fully in the disciplinary hearing and whilst an interpreter had attended the appeal this took the form of a review rather than a rehearing and could not therefore cure the earlier defect.

On appeal it has been held that there is no rule of law that only an appeal by way of rehearing rather than a review is capable of curing defects in disciplinary proceedings. The previous practice of categorising an appeal as either a review or a rehearing should not be continued. The overall process had to be considered to assess if the procedure was fair.

HR should note the importance of the appeal stage in its disciplinary and dismissal procedures. It will be possible for an otherwise unfair dismissal to convert into a fair dismissal.