A recent Employment Appeal Tribunal (EAT) decision has confirmed that a Step 1 dismissal letter must state that the employer is contemplating dismissal.

  • The EAT held that for the statutory procedures to be satisfied the employee must either be explicitly informed that they are at risk of dismissal in the Step 1 letter or must have had that risk communicated by the Step 1 letter and accompanying material.
  • The EAT rejected an argument that it is only necessary (as stated in the actual wording of the Schedule to the Employment Act 2002 which sets out the requirements for 'Step 1') for the employer to set out the matters which have caused dismissal to be contemplated.

Zimmer v Brezan

There has been a recent case giving authority to the argument that employers who announce an intention to dismiss before they send out a step 1 letter and hold a step 2 meeting can recover the position by subsequently sending the letter and holding the meeting, providing they have not actually dismissed the employee.

  • The EAT made it clear that "action taken" as referred to in the statutory dismissal procedures does not refer to the decision to dismiss, rather the actual act of dismissal.
  • In this case an employee was told he would be made redundant and then given a step 1 letter. He was found to have not been automatically unfairly dismissed.

Smith Knight Fay v McCoy