The EAT has examined the application of the “modified” statutory dismissal and disciplinary procedure and confirmed that a strict approach will be taken.
Clients will be familiar with the standard statutory dismissal and disciplinary procedure that must normally be applied whenever proposing to dismiss an employee, which requires a three-step process of a written statement to the employee explaining that dismissal is contemplated and why, a disciplinary hearing and, if applicable, an appeal hearing.
However, the statutory procedures introduced in October 2004 also provided for a “modified” procedure that, in effect, allows employers to dismiss first and ask questions later, in the most clear-cut, “caught red-handed” cases of gross misconduct.
The modified procedure is as follows:
“Step 1: statement of grounds for action
The employer must—
(a) set out in writing:
(i) the employee's alleged misconduct which has led to the dismissal,
(ii) what the basis was for thinking at the time of the dismissal that the employee was guilty of the alleged misconduct, and
(iii) the employee's right to appeal against dismissal, and
(b) send the statement or a copy of it to the employee.
Step 2: appeal
If the employee does wish to appeal, he must inform the employer.
If the employee informs the employer of his wish to appeal, the employer must invite him to attend a meeting.
The employee must take all reasonable steps to attend the meeting.
After the appeal meeting, the employer must inform the employee of his final decision.”
Employers will only be allowed to use this short form of procedure where:
“(a) the employer dismissed the employee by reason of his conduct without notice,
(b) the dismissal occurred at the time the employer became aware of the conduct or immediately thereafter,
(c) the employer was entitled, in the circumstances, to dismiss the employee by reason of his conduct without notice or any payment in lieu of notice, and
(d) it was reasonable for the employer, in the circumstances, to dismiss the employee before enquiring into the circumstances in which the conduct took place”
In O’Neill v Woolridge Ecotech Ltd, the EAT considered a case in which an employer argued that the modified procedure had applied to the dismissal of a lorry driver.
In brief, Mr O’Neill and his line manager had argued over the telephone, and the line manager considered that Mr O’Neill’s conduct during the call had amounted to such insubordination as to amount to gross misconduct. On the following day, after the line manager had discussed the matter with other managers, Mr O’Neill was summoned to the line manager’s office and summarily dismissed, with no prior warning or written document advising him that dismissal was contemplated, although a subsequent appeal process was carried out.
The dismissal was clearly in breach of the standard statutory disciplinary and dismissal procedure but, at the original Employment Tribunal hearing, the Employment Tribunal surprisingly found that the dismissal was not unfair, as the modified statutory procedure had applied.
On appeal, the EAT gave short shrift to that decision and ordered that the case be heard again by a fresh Employment Tribunal. In reaching their decision, the EAT made clear that the dismissal had not been carried out “at the time the employer became aware of the conduct or immediately thereafter”. The EAT also found that the letter that had advised Mr O’Neill of his right of appeal did not adequately explain the alleged conduct for which he had been dismissed; the actual words alleged to have been used by Mr O’Neill were never properly put to him. The employer had therefore failed to set out in writing “the basis for thinking at the time of the dismissal that the employee was guilty of the alleged misconduct.” The EAT concluded that the modified procedure had not been applicable nor been complied with.
This case, like most cases concerning the statutory procedures, is unique to the specific facts of the case, but it does show that Tribunals, properly directed, will be slow to agree that the modified procedure was available. The prudent advice has always been to resist the temptation of the modified procedure and ensure that at least the standard procedure is adhered to. Very rarely will the modified procedure be justified, as there will be very few circumstances where it is reasonable to dismiss before inquiring into the circumstances and, even when that might be the case, this case demonstrates that the courts will take a strict approach when interpreting the modified procedure.