The standard dismissal procedure (SDP) contains three basic steps, and applies to most dismissals. Under the procedure, an employer is required to:
- write to the employee informing them that it is contemplating dismissing them
- attend a meeting with the employee to discuss the matter
- give the employee an opportunity to appeal.
The step two meeting must not take place until the employer has informed the employee of the basis for the proposal to dismiss.
Q What must an employer do to comply with the SDP in a redundancy situation?
A In (1) Alexander & (2) Hatherley v Bridgen Enterprises Ltd (EAT/0107/06), the Employment Appeal Tribunal (EAT) set out what employers need to do to comply with steps one and two of the procedure in a redundancy situation.
It said that under step one, an employer must inform an employee in writing that they are at risk of redundancy, and why.
Under step two, it is required to provide the at-risk employee with information about why there is a redundancy situation and, more importantly, why they have been provisionally selected. This means providing employees with details of any selection criteria together with their individual scores prior to any meeting taking place. While the SDP does not require employers to provide this information in writing, it makes sense from a practical point of view for them to do this.
According to the EAT, an employer is not required to provide staff with information about the ‘break point’ – the mark they would need to achieve to remain in employment, or the scores of other employees in the selection pool.
Note that the SDP does not apply in any redundancy situation where the collective consultation rules are triggered.
Q How much information should an employer provide in the step one letter?
A According to the EAT in Bridgen, an employer merely needs to inform the employee that they are at risk of redundancy and why in the step one letter. It said that the SDP sets out minimum standards and, as such, it does not make sense to set the bar for compliance too high. If in doubt, err on the side of caution and provide more information rather than less. A couple of paragraphs will normally be sufficient for these purposes, but clearly, it will depend on the facts of the individual case.
Any obvious supporting documentation, such as the selection criteria, should be provided with the step one letter.
Q Will a dismissal be fair if an employer complies with the SDP but does little else?
A Not necessarily. While a failure to comply with the SDP will render the dismissal automatically unfair, simply complying with the three basic steps will not ensure the dismissal is fair.
The extent to which employers are required to take procedural steps over and above the statutory provisions is currently unclear. Section 98A(2) Employment Rights Act 1996 requires tribunals to disregard failures by an employer to take such procedural steps, provided that taking such steps would have had no effect on the employer’s decision to dismiss. In the EAT’s view in Bridgen, this means that if an employer fails to comply with any procedure that it ought to have followed, this will not render the dismissal unfair if it can show that the employee would have been dismissed in any event.
In Mason v Ward End Primary School (EAT/0433/05), however, another division of the EAT reached a different conclusion. It held that Section 98A(2) only applies to breaches of an employer’s formal procedure and does not apply to general failures to follow good practice standards, meaning that a failure to follow those standards will still render the dismissal unfair.
Until this conflict is resolved, the safest approach is to follow a fair procedure in the first place – avoiding the need to try to argue afterwards that not following such a procedure made no difference to an employer’s decision to dismiss.
Even if a dismissal is held to be unfair, it will still be open for an employer to argue that an employee’s compensatory award should be reduced if following the procedure would probably not have made any difference to the decision to dismiss them.
Sue Nickson is international head of employment at Hammonds