Statutory disciplinary and dismissal procedures

Challenging as they are, it is crucial that employers get the statutory procedures right if they are to avoid expensive hikes in compensation awards. Failure to follow the statutory dismissal procedure will render any dismissal automatically unfair, with the possibility of compensation being increased by up to 50%.

What information should a step 1 dismissal letter contain?

Employment tribunals have considered this question, and the result is somewhat surprising. The current position is that the employee should know from the letter what the allegations to be addressed are. However, if there is any ambiguity or uncertainty, the tribunal can look at the wider context to decide whether the employee understood the purpose and proposed content of the meeting before it was held.

As a matter of good practice, employers should make clear within the step 1 letter the allegations and the possibility that dismissal could result. Anything short of this could lead to problems about precisely what the employee did or did not know about the reason for the meeting.

In a collective redundancy situation, do we still need to consult individually?

Technically, no. During any collective consultation process, all employees ought to be involved in redundancy discussions through the consultations held between the employer and the employee representatives, and then between the employee representatives and the staff.

However, once collective consultation is concluded and individuals are identified for redundancy, it is advisable to consult individually to ensure that the dismissal stands up to the general reasonable test required by the Employment Rights Act 1996.

In a recent case involving redundancy dismissals (Alexander v Bridgend Enterprises Ltd), the Employment Appeal Tribunal (EAT) confirmed that staff must be told the reason for the redundancy, the selection criteria, and the employee’s score against that criteria, but not the score threshold above which an employee’s job would be safe. In the absence of this information, dismissal is automatically unfair, and the mandatory increase in the compensatory award invoked.

Can a resignation amount to a grievance?

If the resignation is oral rather than in writing, it will not amount to a statutory grievance. However, if the reason for the resignation is something done, or not done, by the employer, this could still amount to a grievance under contractual grievance procedures.

Failure to deal with such a grievance – or at least make further enquiries about the reasons for the resignation – may result in contractual complaints being raised by the employee.

In the case of a written resignation, if the employee sets out the complaints within the resignation letter, this will satisfy step 1 of the statutory procedure, and the employee will be able to submit a complaint to the tribunal after waiting 28 days.

Can an employee raise a grievance about a grievance?

Yes. The statutory rules do not exclude grievances about grievance procedures. If an employee is unhappy about the way in which a grievance has been handled and submits a complaint in writing, this will qualify as a statutory grievance, and could result in a breach of the implied term of trust and confidence.

Should a grievance raised after an employee has left always be dealt with in accordance with the modified procedures?

No. This is a common misconception. The modified grievance procedure can only be used if both parties agree, otherwise the standard procedure must be used.

While either party may be tempted to avoid confrontation via a face-to-face meeting, the standard grievance procedure is often a better route to the satisfactory resolution of the complaint. It may also ensure a more transparent and detailed consideration of the complaint, which could assist either party if formal tribunal proceedings occur at a later date.

If an employee has committed an act of gross misconduct, is it safe to dismiss immediately?

The modified dismissal procedures should only be used where the employee has been caught ‘red-handed’, and where there is no need for any further investigation.

If there is any doubt as to the employee’s guilt, or if further investigation would be reasonable, the standard procedure should be followed.

Does the statutory dismissal procedure apply on expiry of a fixed-term contract?

Yes. The non-renewal of the fixed-term contract would trigger the statutory dismissal procedure. You should set out in writing the fact that the fixed-term contract is due to expire and may result in the termination of employment, and invite the employee to a meeting to discuss it.

After the meeting, you must inform the employee about any decision and offer them the right of appeal. If the employee wishes to appeal, you must invite them to attend a further meeting to hear this, and the final decision must be communicated to the employee.

By Claire Thompson, associate solicitor, Browne Jacobson

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