A Step Forward

Zimmer Ltd v Brezan

Although the statutory dismissal regulations are about to be repealed, the Employment Appeal Tribunal (EAT) has come to a useful decision. It said in Zimmer Ltd v Brezan that if employers do not state explicitly in the step one letter that the employee might be dismissed, the dismissal will be automatically unfair.

Basic facts

Mr Brezan worked as a regional sales manager covering a large territory in the south of England. He used his own car and was allowed to claim for business miles and other expenses. In late 2006 he was offered a new office-based role but, on querying whether he would lose his entitlement to certain mileage payments, the HR director (Ms Wheale) decided to look at his claims.

She then noticed that they seemed higher than other people doing similar jobs and on 7 November they met to discuss her concerns. Ms Wheale then asked him to attend a disciplinary meeting on 9 November 2006 to discuss “your mileage and expense claims”. She attached a copy of the disciplinary policy to the letter, which stated that gross misconduct (such as falsification of documents) could result in summary dismissal.

Mr Brezan was dismissed on 24 November. He claimed automatically unfair dismissal, arguing that the company had failed to comply with step one of the statutory dismissal and disciplinary regulations because it had not warned him that dismissal was a possible outcome of the 9 November meeting.

Tribunal decision

And the tribunal agreed with him. It said that as the letter did not mention anything about gross misconduct, he could not have known that he was at risk of being dismissed.

It also pointed out that “It wrongly identifies the Claimant's right of accompaniment, and it allows less than 48 hours before the meeting. We stress that these last two matters are particularly important and are not matters of mere form. Accompaniment and time to prepare are most important to an employee who understands that his job is at risk than otherwise”.

It concluded that it was not at all clear to Mr Brezan “that the purpose of this exercise was to save his employment, rather than to facilitate his promotion”.

Relevant law

Schedule 2, Part 1, Chapter 1 to the Employment Act 2002 states that:

Step 1: statement of grounds for action and invitation to meeting

1 (1) The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.
(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.

EAT decision

The EAT agreed with the tribunal. It said that unless the step one letter explicitly stated that an employee might be dismissed, it would not have achieved what it was supposed to achieve. In other words, that employees have some idea what type of sanction their employer has in mind for them when they go to the step two meeting.

In this case, the email inviting Mr Brezan to the meeting just said it was to discuss his mileage and expense claims. It made no reference to misconduct, never mind gross misconduct. Nor did it direct Mr Brezan to any specific part of the lengthy disciplinary document.

The EAT concluded that “It was possible from the letter for anyone to think that the employers were thinking, or might be thinking, not in terms of dismissal at all but in terms of relying on unprofessional conduct or failing to record matters which should be recorded or on other matters falling within the definition of "misconduct" as opposed to "gross misconduct.”