Dismissal upheld despite lack of warning

Homeserve Emergency Services Limited v Dixon

FACTS Mr Dixon was employed as a chief service engineer. The case involved an incident when he was discovered by his manager to have been undertaking private work during company time and using a company vehicle for private use, which is against company rules.

Homeserve suspended Dixon and invited him to a disciplinary meeting. The letter stated that the allegation was breaching contractual obligations by conducting private business using company property. At the disciplinary, Dixon admitted the allegation and was summarily dismissed for gross misconduct. His appeal was rejected and he brought an unfair dismissal claim.

DECISION The tribunal found that Homeserve could reasonably conclude that Dixon was guilty of the misconduct alleged, and his ordinary unfair dismissal claim was rejected. However, the tribunal questioned whether there had been a breach of the statutory discipline and dismissal procedure (SDDP) and held that Homeserve was in breach of step one of the SDDP for failing to state in the letter that dismissal was a possible outcome.

The tribunal also found that Homeserve failed to comply with step two of the SDDP in that Dixon was not given sufficient detail to be able to adequately put his case. Consequently, the dismissal was automatically unfair. The tribunal awarded a basic award, but held that Dixon had contributed to his dismissal 100% and was not entitled to a compensatory award.

Homeserve appealed. In considering what is necessary to comply with step one of the SDDP, the Employment Appeal Tribunal (EAT) referred to the statement of the law in Alexander v Brigden Enterprises Ltd that “at step one the employee simply needs to be told that he is at risk of dismissal and why” but said that in this case it was implicit in the letter calling Dixon to the disciplinary hearing that the employer was contemplating dismissal or other disciplinary action. The tribunal was, therefore, wrong in law to find that Homeserve had failed to comply with step one simply because the letter did not state that dismissal was a possible outcome.

The EAT also held that the tribunal was wrong to conclude that Homeserve had failed to comply with step two. The tribunal fell into error in considering that something must take place between the step one letter and the hearing.

KEY IMPLICATIONS This is a surprising decision that should be treated with a degree of caution. In general, it would not be safe for employers to assume they will be able to successfully defend a claim of unfair dismissal if the employee has not been warned before the disciplinary hearing that dismissal is a possible outcome.

Although this case follows the general trend of interpreting the statutory dispute resolution procedures in a non-technical way, the EAT has gone further by suggesting that tribunals should not only examine the plain words of a letter to see if it complies with step one, but may also read between the lines to look for “implicit” meanings.

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