The Statutory Disciplinary and Dismissal Procedure applies whenever an employer contemplates dismissing or taking disciplinary action (other than a warning) against an employee. Failing to follow the Statutory Procedure in a dismissal process renders that dismissal automatically unfair.

But what are the consequences if an employer takes disciplinary action against an employee (ie. action short of dismissal) without following the Statutory Procedures?

In this case an employer suspended an employee without pay prior to sending a so called ‘Step 1 letter’ informing the employee of the grounds for disciplinary action and inviting her to a disciplinary meeting. After the disciplinary meeting the employee was dismissed for gross misconduct.

The employee brought a claim of automatic unfair dismissal on the grounds the employer had failed to comply with the Statutory Dismissal Procedure (specifically on the basis that the Step 1 letter should have been sent prior to the unpaid suspension). The EAT found that whilst there clearly was a breach of the statutory disciplinary procedure, there was no automatic unfair dismissal as the breach related to disciplinary action (ie the suspension) and not the dismissal! Thus there seems to be no remedy for a breach of the Statutory Procedures which relate to disciplinary action short of dismissal (although potentially if the breach is serious enough the employee might be able to resign and claim Constructive Dismissal).

A to B Travel Ltd v Kennedy