What should an employer do when there are developments between the first disciplinary hearing and an appeal? A dismissal may be automatically unfair if the employer fails to start the disciplinary process afresh.
In Premier Foods v Garner an employee complained that, while she had been out of the room, one of her three colleagues who had remained in the room had ‘spiked’ her soft drink with chemicals. The grievance was investigated and all three employees were summoned to disciplinary interviews. All three denied involvement. All three were treated in the same way and given final written warnings to remain on their files for 12 months.

All three appealed and their appeals were all heard on the same day. The employer’s appeal process provided that, at an appeal hearing, the original sanction might be increased as well as reduced or overturned. They were all warned of this.

At his appeal hearing, the first employee changed his story and said that he had seen Mrs Garner ‘spike’ the drink. Mrs Garner’s appeal was heard next. She was told of what the first employee had said but stuck to her original story. She was suspended on full pay. The third employee’s appeal was then heard. She also now said that it was Mrs Garner who had ‘spiked’ the drink. Mrs Garner was then told that she was to be dismissed with immediate effect. The employer’s disciplinary policy provided for a further level of appeal. Mrs Garner appealed, continuing to maintain that she had not spiked the drink and inviting the employer to interview three other employees to whom the third employee had given a different version of events. The employer declined to do so and her dismissal was confirmed.

She claimed that her dismissal was unfair. The Employment Tribunal agreed. Although the employer had followed its own disciplinary procedure (which allowed it to impose a heavier sanction on appeal), it had not followed the statutory disciplinary and dismissals procedure correctly. Once the employer had decided that the new information that came out in the three appeal hearings should lead it to consider dismissal, it should have started the statutory procedure all over again. The employee should have had the case for dismissal put to her in writing and had a reasonable opportunity to consider and respond to it. The employer should then at least have spoken to the other employees to whom she said contradictory stories had been told.

Points to note

The government is currently consulting on whether to abolish the statutory procedures as tending to complicate rather than simplify the process of dispute resolution between employer and employee. We shall keep you informed of any changes in the law.

#  However, in the meantime, the statutory procedures will continue to apply to all employers and will override contractual policies where there is any difference between them. Please ask us if you require further advice. Failure to follow a statutory procedure makes any dismissal automatically unfair.