Sovereign Business Integration plc v Trybus
Regulation 13 of the Employment Act 2002, Schedule 2, states that the timing and location of statutory dismissal and disciplinary procedure meetings must be reasonable.
In what may be the first case to address this issue, the Employment Appeal Tribunal (EAT) said in Sovereign Business Integration plc v Trybus that it was not reasonable for an employer to send a letter on 20 December, giving an appeal date of 29 December.
Mr Trybus worked as a senior sales executive before he was summarily dismissed on 14 December 2005. In 2004 and 2005, he had raised concerns about the way his commission was being calculated and how work was being distributed. In November 2005, his line manager wrote to him asking where he had been on 26 October 2005, as no one could contact him that day.
In early November, Mr Trybus asked for a formal grievance meeting and then a “without prejudice” meeting with the directors in the presence of his solicitor. He was suspended the same day, however, pending an investigation into his absence on 26 October and possible “improper use of electronic communications.” Mr Trybus was then signed off sick for two weeks.
His employer arranged a disciplinary hearing for 30 November and sent him a copy of an “investigation report” that it had compiled. However, on 29 November Mr Trybus sent in another certificate for four weeks. Convinced that this was a delaying tactic, his employer said they would only delay the hearing till 5pm that evening to allow Mr Trybus time to reply to a number of their questions. As they did not receive a response, the hearing went ahead.
Following his dismissal, Mr Trybus notified his employer on 19 December of his intention to appeal. They replied in writing on 20 December (and by e-mail which bounced back) saying it would be heard on 29 December. They did not attempt to contact him, or his solicitor, by phone. As it happens, Mr Trybus was on holiday and only learned of the date on his return. He claimed unfair dismissal.
The tribunal found in favour of Mr Trybus, saying that the company’s investigation was completely one-sided and their whole approach was predicated on the belief that he was planning to leave and make use of commercially sensitive information. This “coloured the whole of the investigation and the treatment of the Claimant thereafter”.
It said that the company was completely unreasonable in failing to delay the hearing, given that Mr Trybus was genuinely ill (although the company believed otherwise). It also criticised them for imposing an impossible time limit for answering their questions.
As the investigation process was completely flawed and the appeal procedure farcical, the tribunal found the dismissal automatically unfair. The employers appealed, saying, among other things, that the tribunal ignored the various steps that they had taken.
The EAT disagreed. It said that although it might have been kinder to acknowledge the steps the employers had taken, it was open to the tribunal to come to the conclusions that it did.
The EAT pointed to the fact that the statutory dismissal and disciplinary procedure states that the timing and location of meetings must be reasonable.
It said that the tribunal was justified in concluding that the timing of the appeal meeting was not reasonable. Given the time of year, the employers were not entitled to assume that Mr Trybus would be at home when their letter arrived. The tribunal was also entitled to take into account that they did not try to ring either Mr Trybus or his solicitors. Even if he had been at home, the letter could not have been delivered before 28 December, giving him only one day to prepare for it.
The dismissal was, therefore, automatically unfair.
This is a welcome decision, although the facts were extreme and it would have been surprising if the EAT had allowed the appeal. While the procedures warn against unreasonable delay, they also require the timing and location of meetings (which are usually within the employer’s control) to be reasonable.