A recent EAT decision has held that a contractual disciplinary procedure, which required an employee to state their grounds of appeal in writing, failed to comply with the Statutory Disciplinary and Dismissal Procedure ("SDDPs") and therefore the resulting dismissal was automatically unfair under the Employment Act 2002 (Masterfoods v Wilson).
The standard SDDP involves three steps:-
Step 1: Statement of ground for action and invitation to meeting to employee.
Step 2: Meeting.
Step 3: Appeal.
Under Step 3 an employee has the right to appeal against the decision the employer has taken following the meeting. To exercise their right of appeal the employee must inform the employer that they wish to appeal, however, this does not require to be done in writing. There is no specific time limit within which the intention to appeal must be notified, although all steps of the SDDP must be taken without 'unreasonable delay'.
Masterfoods' disciplinary procedures required an employee who wished to appeal against a dismissal or disciplinary sanction to set out the grounds of the appeal in writing within 5 working days of the letter informing them of the decision. In this case the employee was dismissed after a hearing and wrote to Masterfoods 4 days after being informed of the decision stating he intended to appeal and was taking legal advice therefore the grounds of the appeal would follow. Masterfoods received a letter from the employee's solicitor setting out the grounds of appeal nearly 4 weeks after he was notified of the decision, and therefore refused to hear the appeal due to the delay.
The EAT upheld the tribunal's decision that the dismissal was automatically unfair due to the failure to follow the SDDPs, as lodging written grounds of appeal was not necessary in order to satisfy the SDDPs. The EAT also upheld the tribunal's decision that the dismissal was procedurally unfair under the general unfair dismissal procedures as the personnel manager made comments demonstrating he had a "closed mind" to the case before the hearing, relied upon rumours as evidence of the employee's misconduct and was present at all stages of the procedure. It was also held to be unreasonable for Masterfoods not to have referred the matter to an occupational health physician before the decision and not to have made previous medical reports available to the employee and the disciplinary panel as part of the disciplinary proceedings. These points are important to note as compliance with the SDDPs does not in itself make the dismissal fair.
This case demonstrates the importance of meeting the requirements of the SDDPs and not imposing policies or procedures that restrict an employee's rights under the statutory procedure. Not only does breach of the SDDPs render the dismissal automatically unfair, it also leads to an uplift of up to 50% of the compensation awarded by the tribunal.