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[Employment] The importance of procedure to avoiding unfair dismissal claims

11 January 2019

Steven King


Once an employee has obtained 2 years’ continuous service, they have the right not to be unfairly dismissed. Fair reasons for dismissal include capability, conduct, redundancy, breach of statute or some other substantial reason (SOSR). In addition to requiring a fair reason, an employer also has to follow a fair procedure. For example, if an employee is being dismissed for poor performance (capability) they must receive a series of warnings and be given ample opportunity to improve before being dismissed.

The importance of following a correct procedure was illustrated in the recent Employment Appeal Tribunal (EAT) case of Talon Engineering Ltd -v- Smith [2018]. Workers have a statutory right to be accompanied at disciplinary hearings by either a work colleague or a union representative and can propose an alternative date for the hearing if their chosen companion is unavailable. Provided the alternative time proposed is reasonable, and within five working days of the previous date, the employer should postpone the meeting. In this case, the day proposed was 7 days later which was rejected by the employer who proceeded with the disciplinary meeting regardless and subsequently dismissed the employee. The EAT held that an employer’s refusal to postpone the disciplinary hearing rendered the employee’s subsequent dismissal unfair.

The proposed postponement was a short one, two days more than the statutory right envisaged, so the employer had been unduly hasty in not accommodating such a short delay. The EAT sided with the employee in that no reasonable employer would have refused to postpone the hearing. What needs to be highlighted in this case is that the employee does not challenge that the employer had a fair reason to dismiss, but only that the procedure was unfair. Essentially they could have waited the extra two days to have the hearing and there would have been no unfair dismissal claim.

What this case illustrates is the importance of procedure. While an employer cannot dictate how an unruly employee will behave, they can proactively ensure that the procedure followed is compliant with ACAS guidelines which should be detailed in their staff handbook. An employer may well be within their rights to discipline and dismiss a disruptive employee but, if the correct procedure is not followed, successful claims can still be brought. Moreover, as can be demonstrated from the above case, failure to follow one aspect of a prescribed procedure can cause the whole dismissal to be unfair.

Companies should also see the benefit of following good practice when dismissing all employees, regardless of their length of service. Even though an employee only has protection from unfair dismissal after 2 years, they have protection from discrimination from day one. Therefore if you dismiss an employee without informing them of the reason for their dismissal, this may encourage them to consider that they may have been discriminated against and bring a claim. Even if this claim is without substance, the company will still have to spend time and resources defending it. Therefore, even if an outgoing employee does not have unfair dismissal rights, it is in the company’s interests to explain to them the reason why they are being dismissed. This does not mean following a full procedure as you would for an employee who has protection from unfair dismissal but a simple meeting before you dismiss may alleviate any risk of discrimination claims. Employers who proceed on the basis that they can behave as they want simply because the individual does not have protection from unfair dismissal are likely to unnecessarily increase the threat of litigation.

If you would like advice on dismissal procedures, please contact our employment team.

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Steven King