The statutory procedures are not concerned with procedural details. They set out basic minimum steps that must be followed by all employers. Even where a failure to follow the statutory disciplinary and dismissal procedure means that a dismissal is automatically unfair, this will not stop a Tribunal from reducing compensation to zero in an appropriate case.
In Ingram v Bristol Street Parts the EAT recently considered the case of a cashier who told her employer that sums of cash for which she was responsible had gone missing. She said that she had been falsifying accounts for three months to cover up the loss. When this came to light, the employer correctly followed Step 1 of the statutory disciplinary and dismissal procedure, sending her a letter summoning her to a disciplinary meeting to explain her misconduct and warning her that she was at risk of dismissal. However, at the meeting, the employer produced accounts going back over almost a year and it was put to her that she had, in fact, been falsifying accounts for much longer than she had admitted. She denied this, but was still dismissed for gross misconduct.
The Employment Tribunal which heard her unfair dismissal claim decided that the extra charges against her should have been put to her in writing before the meeting and the employer’s failure to do this was a breach of the statutory procedures, making the dismissal automatically unfair.
However, when it came to assessing compensation, the Tribunal decided that compensation should be reduced to zero because the employee would have been dismissed even if a fair procedure had been followed. It also decided that she had contributed 100% to her dismissal by her conduct in covering up the employer’s losses.
The EAT thought that the Tribunal was wrong to call the dismissal automatically unfair. The employer did not have to give the employee all its evidence in advance of a disciplinary hearing, only enough to enable her to put her side of the story. It reversed the Tribunal decision and found the dismissal fair, but went on to say that even if the dismissal was procedurally unfair, compensation should still have been reduced to zero in this case.
Points to note:
- The decision in Ingram is good news for employers. Where the statutory grievance procedure is involved, the EAT has been keen to stress that only the barest of formalities are necessary for the employee to show that he or she has ‘set out the grievance in writing’. Now the EAT is saying that employers too, when initiating the statutory disciplinary and dismissal procedure, need only provide ‘sufficient information for the employee to put her side of the story’.
- Employers should appreciate, however, that complying with the statutory procedures does not mean that a dismissal is necessarily ‘fair’. It means that the dismissal is not automatically unfair, but it may still be unfair under general unfair dismissal law. For instance, was it reasonable for the employer to treat the reason given as a sufficient reason for dismissal?