Stepping stones

Vennini v Autodex Ltd

The statutory disciplinary and dismissal procedure requires employers to follow certain steps before dismissing an employee. In Vennini v Autodex Ltd (IDS 846), the Employment Appeal Tribunal (EAT) said that the onus was on tribunals, not claimants, to consider in every unfair dismissal case whether the employer had followed the procedure or not.

Basic facts

Mr Vennini worked as a paintsprayer for Autodex from September 2003 to August 2006. His contract contained a mobility clause but when he was asked on 18 August to go to another site (one of four at which he worked), he refused.

When asked again on 22 August by a more senior manager, Mr Vennini was said to have become abusive in front of other shop floor workers and again refused to go. For his part, Mr Vennini said the manager threatened him with dismissal if he failed to go the next day.

Mr Vennini heard nothing more until he was asked at short notice to attend a disciplinary meeting on 29 August at which he was told that he would be dismissed. He then appealed unsuccessfully against that decision which was effective from 29 August and claimed unfair dismissal.

Relevant law

Section 98A of the Employment Rights Act 1996 states that:

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed; if—

(a) one of the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 (dismissal and disciplinary procedures) applies in relation to the dismissal

(b) the procedure has not been completed, and

(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

Tribunal decision

The tribunal said that the reason for Mr Vennini’s dismissal was his misconduct, and that “in the circumstances of this case, and having regard to the size and nature of the Respondent's organization, the Tribunal find as a fact that the Respondents acted fairly towards the Claimant and in those circumstances this claim fails."

As for the company’s failure to abide by the statutory dismissal procedure, the tribunal said that Mr Vennini had been told verbally on 22 August that the matter would be dealt with on 29 August.

Although he was only told he would be disciplined shortly before that meeting, the tribunal said he had been told at the time of the incident itself that he was to be disciplined. The minutes of the incident were given to him before the disciplinary hearing and although the company had not set out the complaint in writing, the tribunal was satisfied that he was knew that there was to be a hearing and understood the allegations against him.

EAT decision

The EAT was highly critical of the tribunal’s failure to consider section 98A(1) when looking at the issues which, it said is “part of the essential fabric of unfair dismissal law as presently enacted by Parliament.”

It said that the onus was not on claimants to raise section 98(1) explicitly, but on tribunals. They should consider in every unfair dismissal case “whether there is an applicable procedure, whether there has been "non-completion" of that procedure, and whether that non-completion is wholly or mainly attributable to failure by the employer to comply with its requirements”.

In this case Mr Vennini had actually included a document in his tribunal bundle summarizing the requirements of the procedure and had starred step one (which requires employers to give employees a written statement of the grounds for a disciplinary meeting). As Autodex had failed to comply with step one, the dismissal was automatically unfair under section 98A(1).