Employment Update: Statutory Disciplinary Procedure (SDP)

21 November 2007

Was the SDP ‘completed’ when not strictly complied with because of a delay in hearing an appeal against a dismissal? If not, the dismissal would be automatically unfair.

In Wilmot, Wilmot & Patel v Selvarajan the employer (a GP sole practitioner) had dismissed the employees for misconduct after he discovered that they had falsified overtime and holiday pay entitlement. He had first suspended them from duty, and then followed this up with a letter asking each of them to attend a disciplinary hearing. At the hearing, they were each represented by their trade union and given an opportunity to respond to the charges against them. They were then summarily dismissed for misconduct. Three days later they appealed against their dismissals. The appeal hearings were conducted some four months later and the appeals rejected. The Employment Tribunal dismissed their claims that they were unfairly dismissed.

The employees appealed to the EAT, arguing that the dismissals were automatically unfair under s98A of the Employment Rights Act, 1996 because the SDP applied but the SDP had not been ‘completed’. Para. 12 of Sch 2 to the Employment Act 2002 requires that ‘each step and action under the procedure must be taken without unreasonable delay’ which they claimed had not been done.

The EAT agreed that it was not enough for the employer to say that he had ‘completed’ the procedure because of the general requirement under para.12 that each step in the procedure should be completed without undue delay. The Tribunal had not considered this issue and the case was remitted for it to be considered afresh.

Point to note:

  • The case was remitted because there was still an issue to be decided, namely as to whether the delay in hearing the employees’ appeal against dismissal had been ‘reasonable’. The EAT noted that as the employer was a GP in sole practice, he personally had to attend the disciplinary hearing and then also the appeal hearing. Following his summary dismissal of what was in effect his entire administrative team he had also had to personally take on the whole administrative burden of his practice and so it might not have been reasonable to expect him to arrange the appeal hearing any earlier than he did. Larger employers will not have this excuse and should note that, even in apparently hopeless cases, failure to arrange an appeal hearing, or to take any other step required by the SDP ‘without unreasonable delay’ may make an otherwise fair dismissal automatically unfair.