The EAT has stressed the importance of expressly stating the fact that dismissal is contemplated in step 1 letters pursuant to the statutory dismissal and disciplinary procedures.

Step 1 of the statutory dismissal and disciplinary procedures provides that an employer must set out in writing the employee's alleged conduct or characteristics or other circumstances which have led the employer to contemplate dismissing or taking disciplinary action against the employee. In practice, this is usually done by way of a letter that goes on to invite attendance at a disciplinary hearing.

The procedures themselves do not say that the step 1 letter must actually state the fact that dismissal is being contemplated but, in a previous leading authority, the Employment Appeal Tribunal in Alexander & Hatherley v Bridgen Enterprises Ltd suggested that such a statement was in fact required. In Alexander, the EAT said that ".... at step 1 the employee simply needs to be told that he is at risk of dismissal and why."

In a previous briefing we reported on the 2007 case of Homeserve Emergency Services v Dixon. In Homeserve, the EAT agreed with the above statement in Alexander but went on to find that, where the step 1 letter was not explicit in stating that dismissal was being contemplated, the fact that dismissal was being contemplated could be implicit from the content of the step 1 letter and surrounding circumstances. In such circumstances, the EAT held in Homeserve, there is no breach of step 1 and thus no automatic unfair dismissal. When we reported on the Homeserve case, we advised clients to treat the decision with a measure of caution; it would need to be very clear on the facts of a particular case that the possibility of dismissal was implicit and, rather than take unnecessary risks, it was far preferable to ensure that the step 1 letter was explicit as to the contemplation of dismissal.

The point has come before the EAT again in Zimmer Ltd v Brezan. Like Homeserve, the facts of Zimmer involved the dismissal of an employee following a step 1 letter (an email) that failed to expressly state that dismissal was contemplated by the employer. The EAT reviewed the Alexander and Homeserve decisions and, whilst accepting that "on the facts of a particular case it is open to a tribunal to consider that the step 1 letter, and information provided with it, can be regarded, in the individual circumstances of the case before them, as sufficient to communicate the risk to the employee of dismissal, albeit the letter itself does not expressly say that" the EAT concluded on the facts of the case in Zimmer that contemplation of dismissal was not implicit from what was sent to the employee and therefore that the dismissal was automatically unfair.

The Zimmer case demonstrates the risk of being less than explicit in step 1 communications. As we advised clients when reporting on the Homeserve decision, rather than risk a finding of unfair dismissal or at least the cost and inconvenience of litigation on the point, clients are best advised to make step 1 letters explicitly clear that dismissal is contemplated.