Yorkshire Housing Ltd v Swanson
The dispute resolution procedures state that employers must not delay unreasonably between the various steps they are required to follow. In Yorkshire Housing Ltd v Swanson, the Employment Appeal Tribunal (EAT) said that if they do, tribunals must make a finding of automatically unfair dismissal
Basic facts
Ms Swanson was suspended in November 2004 from her work as a housing officer on suspicion of helping a friend to obtain a tenancy under false pretences. She was exonerated following an investigation and returned to work on 1 December, only to be suspended again two days later.
The same manager investigated again and recommended that she be dismissed. Following a disciplinary hearing in February, she was finally told of her dismissal on 14 July 2005, five months after the original hearing.
Ms Swanson claimed “ordinary” unfair dismissal under section 98(4) of the Employment Rights Act 1996 (ERA), as well as “automatic” unfair dismissal under the Employment Act 2002 (that the Association unduly delayed in dealing with the disciplinary process and notifying her of the outcome).
Tribunal decision
And the tribunal agreed with her. It said that Mr Rich went beyond his brief in recommending dismissal, and had failed to interview potential key witnesses. In addition, the chair of the disciplinary hearing had not acted impartially.
It therefore concluded that the investigation was flawed. The Association had not carried out a fair procedure, nor was the decision to dismiss within a band of options open to a reasonable employer (the “Burchell” test). The dismissal was therefore unfair under the “ordinary” rules.
However, although it also found that the Association's failure to notify Ms Swanson of the outcome of the disciplinary hearing within a reasonable period amounted to a breach of the Employment Act 2002, it did not go on to say this made the dismissal “automatically” unfair.
Grounds of appeal
The Association appealed against the “ordinary” unfair dismissal decision on the basis that the tribunal misapplied the “Burchell” test. Ms Swanson cross-appealed against the tribunal’s failure to find her dismissal automatically unfair.
EAT decision
The EAT agreed with the Association that the tribunal had failed to correctly apply the Burchell test and had substituted its own view about the reasonableness of the Association’s decision to dismiss Ms Swanson summarily. The finding of unfair dismissal could not therefore stand.
However, it also found in favour of Ms Swanson’s cross appeal.
First of all, the EAT said that paragraph 12 of Part 3, Schedule 2 of the 2002 Employment Act stipulates that “each step and action under the [standard dispute resolution] procedure must be taken without unreasonable delay”.
This, it said, applied to the employer's duty to inform the employee of their decision and notify them of the right to appeal, after the step two meeting had taken place. In this case, the disciplinary meeting on 17 February. But what is the sanction if they don’t?
Section 98A(1) ERA 1996 then states that a claimant has to be regarded as unfairly dismissed if the standard procedure which applies has not been completed “due wholly or mainly to the Respondent's failure to comply with its requirements”.
In this case, given the clear and unchallenged finding that there had been a delay of five months between the date of the disciplinary meeting and the date when Ms Swanson was notified by the Association of her dismissal, the EAT said the tribunal should have found that the procedure had not been completed, and that Ms Swanson’s dismissal was automatically unfair.