TAKEN TO COMPLETION

Selvarajan v Wilmot

Contrary to a number of recent appeal tribunal decisions on compliance with the statutory disciplinary and dispute procedure (DDP), the Court of Appeal has ruled in Selvarajan v Wilmot that just because an employer fails to comply with a procedural requirement under the DDP does not mean that they have failed to complete the procedure itself.

Basic facts

The three claimants were suspended in January 2005 from their posts as receptionists in Dr Selvarajan’s surgery, following allegations of false overtime claims. Dr Selvarajan carried out a thorough investigation and then held a disciplinary hearing at which he showed them evidence of a number of discrepancies in their claims.

They were then dismissed on 5 March 2005, but appealed on 8 March. Dr Selvarajan did not hear the appeals until 4 July 2005 (after the ET1s were lodged) and finally confirmed their dismissals on 8 July.

The three receptionists submitted tribunal claims, arguing that their dismissals were automatically unfair under section 98A of the Employment Rights Act 1996 (ERA) because of the long delay between the date of their dismissal and the date of their appeal.

Relevant law

Section 98A of the ERA 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.

The dismissal and disciplinary procedure (DDP) referred to in 98(1)(a) stipulates that employers have to follow three steps before dismissing an employee – provide them with a statement of grounds for action and invite them to a meeting (Step 1); hold the meeting (Step 2); and offer an appeal (Step 3). The general requirements include the obligation to avoid unreasonable delay between the steps.

If the employer fails to “complete” any of the procedure, the dismissals are automatically unfair and compensation is adjusted by between 10 and 50 per cent.

Tribunal and EAT decisions

The tribunal rejected the employees' claims, holding that they were dismissed for misconduct, a potentially fair reason for dismissal. As dismissal was within the band of reasonable responses open to Dr Selvarajan and he had complied with and completed all the statutory requirements under the DDP, the dismissals were fair.

But the EAT overturned that decision, saying that because of the unreasonable delay between the submission of the appeals and the hearing date, the employer had not complied with the requirement that each step under the statutory disciplinary procedure must be taken without “unreasonable delay”.

Court of Appeal decision

The Court of Appeal overturned the EAT’s decision and upheld the tribunal's conclusion that the DDP had been completed despite the four-month delay between the appeals being lodged and being heard.

It ruled that just because an employer fails to comply with a procedural requirement under the statutory DDP does not mean that they failed to complete the procedure itself. The dismissals were not, therefore, automatically unfair.

It said that section 98A distinguishes between three things

• whether the procedure applies at all
  whether it has been completed
  whether the requirements of the procedure have been complied with

The question about whether the procedure applies has to be addressed before the question about whether it has been completed, for the simple reason that if it does not apply, then the issue as to whether it has been completed never arises.

Likewise, the question whether the procedure has been completed must be addressed before the question about whether the general requirements of the procedure have been complied with. Again, this is because if the procedure has been completed (as here), the question about whether there has been non-compliance never arises (as here).