Employment Law E-Bulletin

Cases: Feb 09

Disciplinary Meeting Invitation Letters

Although the Statutory Disciplinary and Dismissal Procedure (SDDP) is due to disappear in April, Zimmer Ltd v Brezan is a reminder that the procedures cannot be forgotten for the moment and that even though they are on the way out, until the SDDP is no more, the smallest of procedural failures can leave employers facing claims. 

Mr Brezan was a sales representative for Zimmer Ltd.  He was accused of fraudulent dealings in relation to his mileage expenses and was sent an email inviting him to a disciplinary meeting.  Expenses claims were mentioned as the topic for discussion but the email did not mention that dismissal was a possible outcome of the meeting. 

After the meeting had been held, the decision was taken to terminate Mr Brezan’s employment.  He then claimed unfair dismissal on the basis that the Company’s failure to advise him that he was at risk of dismissal prior to the meeting meant that the termination of his employment was automatically unfair because the SDDP had not been followed.  The Employment Tribunal which originally heard this case agreed. 

Zimmer Ltd then appealed to the Employment Appeal Tribunal arguing that the SDDP does not require an employer to mention specifically that the employee is at risk of dismissal in the letter inviting the employee to the disciplinary meeting.  Unfortunately, the EAT disagreed with this argument stating that if an employee is at risk of being dismissed then the letter inviting the employee to the disciplinary hearing must make that clear or it will not be valid for the purposes of the SDDP.  As a result, the EAT confirmed that Mr Brezan’s dismissal was automatically unfair.

Another case clarifying the application of the SDDP is Wilf Gilbert (Staffs) Ltd v Bunn.  This case dealt with suspension without pay.  However, the main issue was about the employer’s alleged failure to follow the SDDP correctly.

In this case, Mr Bunn, who was the manager of a betting shop, was dismissed for misconduct.  After having originally reached an understanding with one of the Company’s managers that he would not work on Mondays because of childcare responsibilities, the Company’s rota system was changed requiring Mr Bunn to work on Mondays.  Discussions took place between Mr Bunn and his managers, which resulted in a verbal altercation between Mr Bunn and one of the managers.  Mr Bunn was suspended without pay immediately.  He was not given any letter setting out why the suspension was being implemented before the suspension took effect but the Company did write to him very shortly afterwards inviting him to a disciplinary hearing and explaining their reasoning behind contemplating disciplinary action.  The outcome of the hearing was that Mr Bunn was dismissed for refusing to work on Mondays and for using foul and abusive language.

Mr Bunn brought a number of claims, including one for automatically unfair dismissal on the basis that the Company had been obliged to send him a letter inviting him to a meeting and to hold a disciplinary meeting before suspending him without pay. 

Although the Employment Tribunal originally agreed with this reasoning, on the grounds that suspending an employee without pay is an example of “relevant disciplinary action” to which the SDDP applies, the EAT has come to a slightly different conclusion.  The EAT agreed that suspension was “relevant disciplinary action” but clarified that suspension was a special type of sanction under the Regulations.  Paragraph 2(1) of schedule 2 to the Employment Act 2002 clearly provides that where disciplinary action consists of suspension, the action can take place before the required disciplinary meeting. 

However, the EAT felt that the disciplinary invitation letter should have been sent to Mr Bunn before he was suspended in order to give the employee an opportunity to put forward his case before the suspension came into effect.

Again, although the SDDP is about to disappear, this is an important decision in that it clarifies the procedure that employers should adopt when contemplating suspension without pay.  Although it is always best practice to provide the employee with a letter setting out why they have been suspended. Sending such a letter should now be considered before suspension becomes a reality rather than after the employee has already been sent home in all cases but as the case was dealing with suspension without pay it is arguable that the impact of the decision is limited to similar cases. 

Interview Warning

The third case that we want to highlight this month is not actually a Tribunal decision but is a ruling of the Information Commissioner (the “IC”) against Leicester City Council.  The IC had been contacted by an employee at Leicester City Council after the Council had refused to supply information that he had requested under the Freedom of Information Act relating to the recruitment process for a position that the employee had applied for on the grounds that it fell within one of the exemptions to the Freedom of Information Act.

The complainant, who worked for the Council, had applied unsuccessfully for two internal vacancies.  He then made requests under the Freedom of Information Act for information about the other applicants. 

The IC has now decided that, although some of the information was protected by the exemption, the majority of the information requested could be provided, if the identity of the candidates remained anonymous.  In particular, the commissioner felt that information about the other applicants’ experience and qualifications could be provided without breaching those candidates’ rights under the Data Protection Act.

The IC has therefore directed that Leicester City Council provide the information to the complainant, either by anonymising the application forms so that all the information from which a candidate could be identified has been removed or by supplying brief summaries of the information contained in the applications.

Employers have always had a duty to disclose such information during the course of Employment Tribunal proceedings but this decision is a worrying development in that disclosure of application forms and other documents relating to the selection process such as interview notes may now need to be considered at a much earlier stage.  Although only public bodies are subject to the requirements of the Freedom of Information Act, the specific reference to being able to provide the information without being in breach of the Data Protection Act means that scope for refusal in both the public and the private sector has been very much reduced.

That is not to say that employers should now stop making notes or that such information should be disclosed automatically.  Without the notes it is almost impossible to defend claims of discrimination as there is no way to establish why any particular decision was made.  However, this decision should serve as a warning to staff conducting selection processes to be vigilant in terms of what exactly they write about applicants because that information may need to be released at a later date. 

It has always been important to establish that fair selection criteria were used.  However, the decision makes it doubly important that the selection criteria are adhered to and that records are taken to show that the decisions about appointment were made in line with those criteria.  Personal comments should be avoided at all costs.

For further information contact Burnetts' employment law team on 01228 552222

Back to Employment Law E-Bulletin Feb '09

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Feb '09