The standard dismissal and disciplinary procedure (SDDPs) applies (with a number of notable exceptions) when an employer contemplates dismissing an employee or taking disciplinary action. Step 1 of the SDDPs requires the employer to set out in writing the employee’s alleged conduct or other circumstances that lead him to contemplate dismissing the employee or taking disciplinary action. The employer must send this information to the employee in writing and invite the employee to attend a meeting to discuss the matter.
In the case of Zimmer Ltd v Brezan, (which you can see in full here) the Employment Appeal Tribunal (EAT) considered whether the SDDPs require the employer, where dismissal is a option, to spell out the risk of dismissal in writing. Mr Brezan received a written invitation to a disciplinary meeting to discuss his mileage and expense claims and was informed of his right to be accompanied. He was provided with a copy of the Zimmer disciplinary policy, which set out various offences of gross misconduct including falsification of documents. However, the letter did not refer to a potential case for gross misconduct and the risk of dismissal.
The EAT held that the employer must make it plain that dismissal is in the mind of the employer so as to comply with the SDDPs. It is insufficient just to refer to the misconduct alleged. It follows therefore that an employer inviting an employee to a meeting to discuss the possibility of termination of employment on grounds of redundancy must make it clear in writing that termination of employment is a possibility.
A timely reminder that a breach of any of the three steps under the SDDPs makes the dismissal automatically unfair. The employment tribunal also has the power to award an uplift of up to 50 per cent against the employer for its non-compliance.
Notwithstanding the abolition of the SDDPs from 6 April 2009 (albeit subject to transitional provisions), it is highly likely that an employment tribunal faced with deciding whether a dismissal is fair or unfair would come to a decision that a failure to warn an employee of the risk of dismissal is an unfair element in the disciplinary procedure.