Employment Update StatDis 0108

16 January 2008

Summary dismissal exclusion applies only when employer dismisses ‘at the time the employer becomes aware of the conduct or immediately thereafter’

In the case of O’Neil v Wooldridge Ecotech Ltd, the EAT has considered for the first time the modified form of the statutory disciplinary procedure - set out in Reg. 3(2) of the 2004 Dispute Resolution Regulations and Schedule 2 to the Employment Act 2002.

The modified procedure can apply to a misconduct dismissal where the dismissal occurs 'at the time the employer became aware of the conduct or immediately thereafter'. In such a case there is no need for a Step 1 letter or a Step 2 meeting but, having dismissed the employee, the employer must set out in writing the employee’s alleged misconduct which has led to the dismissal, what the basis was for thinking he was guilty, and inform him of his right to appeal against dismissal.

In O'Neil, the employee swore at his line manager. The line manager then discussed the incident with two other individuals before deciding to dismiss. The employee was summarily dismissed the next day, but the letter confirming his dismissal, although it told him of his right to appeal, did explain what it was that he had been dismissed for.

The EAT has allowed the employee’s appeal. As he was not dismissed 'immediately' and the letter he was sent did not fulfill the statutory requirements, the standard statutory dismissal procedure should have been followed. As it had not been, the dismissal was automatically unfair.

Point to note:

  • Even in a case where summary dismissal seems appropriate, employers will always be best advised to use the standard 3-Step statutory disciplinary procedure. As the O’Neil case shows, it is all too easy to fall foul of the specific requirements of the modified procedure and make an otherwise fair misconduct dismissal automatically unfair.

Employment Group