Employment Update Statutory disciplinary procedures 0808

13 August 2008

Delay in handling appeal may not amount to failure to ‘complete’ the SDP and so may not make the dismissal automatically unfair.

In Selvarajan v Wilmot and others the Court of Appeal has overturned not one but several EAT judgments on an important point concerning the implementation of the statutory disciplinary and dismissals procedures (the SDDP).

The employees were administrative staff at a GP practice who had been claiming, and been paid for, unauthorised overtime. They were clearly guilty of misconduct and were summarily dismissed. The employer had then taken four months to deal with their (unsuccessful) internal appeal against dismissal.

A dismissal will be automatically unfair if the SDDP ‘has not been completed’ and that ‘non-completion’ is ‘wholly or mainly attributable to failure by the employer to comply with its requirements’. The third procedural step of the SDDP requires the employer to permit an employee to appeal against a decision to dismiss. In the SDDP 'each step must be taken without unreasonable delay'.

In several reported cases, including this one, the EAT had said that a dismissal will be automatically unfair as a result of procedural unfairness if the employer does not deal with any appeal against dismissal within a reasonable time.

However, in this decision, the Court of Appeal now says that a failure to comply with this requirement does not necessarily amount to 'non-completion' of the SDP such as to render the dismissal automatically unfair.

Points to note –

  • Even after this decision, delay in dealing with an appeal against dismissal may still be relevant to the issue of reasonableness when deciding whether there was an ‘ordinary’ unfair dismissal. In this case, the delay in arranging an appeal hearing (four months) was held to be reasonable. The employer was a sole practitioner GP who was seriously understaffed at the time because of the dismissals he had been forced to make.
  • Where an employer appears to be unreasonably delaying an employee’s appeal against dismissal, the employee has two choices. He or she may wait for the outcome of the appeal and claim that the delay makes the dismissal either automatically or potentially unfair. Alternatively, the employee may declare that the employer’s delay means that they are under no further obligation to take part in the appeal procedure and file their tribunal claim without waiting for the outcome of the appeal (Dispute Resolution Regulations: Regulation 12).
  • The general requirement that each step must be taken without unreasonable delay applies to the statutory grievance procedure as well as the SDP. Thus, the Court of Appeal decision in Selvarajan may allow employers some leeway in dealing with employee grievances without being penalised for ‘non-completion’ of the procedure. However, care should always be taken so that a procedural lapse does not to turn an otherwise fair dismissal into an automatically unfair one.

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