Modified behaviour

O’Neil v Wooldridge Ecotech Ltd

Section 98(A) of the 1996 Employment Rights Act (ERA) requires employers to follow a disciplinary procedure before dismissing someone. In O’Neil v Wooldridge Ecotech Ltd (IDS 848), the Employment Appeal Tribunal (EAT) said that the modified procedure did not apply to dismissals that took place a day after the alleged misconduct.

Basic facts

At the beginning of April 2006, Mr O’Neil clashed with his manager, Mr Atwell, over an incident in which he was alleged to have verbally abused a colleague. Then on 26 April Mr Atwell challenged Mr O’Neil about the number of loads he had transported that day, after which an argument ensued in which Mr Atwell accused Mr O’Neil of swearing at him.

Mr Atwell decided that this amounted to gross misconduct and, after consulting with the company owners, dismissed Mr O’Neil the following day. In a letter dated 27 April, confirming the dismissal, Mr. Atwell told Mr O’Neil he had a right of appeal.

Mr O’Neil claimed that the dismissal was automatically unfair because his employer had not complied with the statutory disciplinary and dismissal procedure (DDP) under section 98A of the ERA.

Relevant procedure

The standard DDP applies when the employer is thinking about dismissing an employee or disciplining them for something to do with their conduct or capability.
It consists of three steps:

Step one – the employer gives the employee a written statement
Step two – the employer invites the employee to a meeting
Step three – if the employee wants to appeal, the employer must invite them to a second meeting

The modified procedure applies if the employer dismisses someone without notice because of gross misconduct more or less on the spot and it is reasonable not to investigate. It consists of two steps:

Step one – the employer sends the employee a written statement of the alleged misconduct that led to the dismissal, including any evidence
Step two - if the employee wants to appeal, the employer must invite them to a meeting

Tribunal decision

The tribunal said that the dismissal was fair as the company had considered all the relevant factors in the case. It was therefore entitled to treat Mr O’Neil’s actions as gross misconduct which warranted summary dismissal.

Although the company had not held a disciplinary hearing, the tribunal decided that this was reasonable as “the relationship between the Claimant and Mr Attwell was destroyed”. In any event, Mr O’Neil had been given a right of appeal which he had exercised.

It concluded that as the company had complied with the modified statutory DDP, the dismissal was not automatically unfair.

EAT decision

The EAT said if the company failed to follow either of the two statutory disciplinary and dismissal procedures (standard and modified) then the dismissal would be automatically unfair.

As Mr Atwell did not dismiss Mr O’Neil until the following day, the EAT said that the modified procedure could not apply as the dismissal had not taken place “at the time the employer became aware of the conduct or immediately after it”.

Even if it did apply, the EAT said that the company had not complied with it as their letter of 27 April confirming Mr O’Neil’s dismissal did not satisfy step one of the modified procedure. Nor had the standard procedure been complied with as the company had not followed either steps one or two.

Finally the tribunal had also failed to consider whether the dismissal was unfair under section 98 of the ERA. In other words, whether the company had carried out a reasonable investigation before dismissing Mr O’Neil. Its finding that an investigation was unnecessary because the relationship between Mr O’Neil Mr Attwell had broken down would not “withstand scrutiny”.

It therefore remitted the case to a fresh tribunal for a re-hearing.