Employment Law E-Bulletin

Cases

The relationship between the DDP and Internal Procedures

In the case of Masterfoods Ltd v Wilson, the EAT has sounded a warning to employers who operate contractual dismissal and disciplinary procedures over and above the statutory minimum.  Mr Wilson, a Masterfoods employee, had been on extended sickness absence when in October 2005, he was spotted by private investigators driving to France.  Mr Wilson was taken through the disciplinary procedure, dismissal was recommended and then implemented in November 2005.

Masterfoods then wrote to Mr Wilson informing him of the company’s decision and of his right of appeal.  The company also pointed out that under their contractual dismissal procedure, Mr Wilson was required to set out the grounds of any appeal in writing within 5 days.  Mr Wilson duly replied saying that he did wish to exercise his right of appeal but requesting that he be given time to consult with his solicitor about the grounds.  This request was granted.  However, when Masterfoods had still not heard anything further from Mr Wilson by December 2005, it wrote to him advising him that because of the delay his appeal would not be allowed.

In a clearly correct, if somewhat harsh decision, the EAT stated that the DDP merely requires the employee to inform the employer of his or her intention to appeal.  There is no specific requirement that the notification be in any particular form and certainly no requirement that the appeal or the grounds for it needed to be in writing.  This rendered Masterfoods’ refusal to allow the appeal unlawful even though there was a clear breach of their contractual provisions and, due to the lack of opportunity to appeal, the dismissal was automatically unfair.

View the full Bailii case report

Illegality as Reason for Dismissal

The case of London Borough of Hounslow v Klusova is a good example of the rare circumstances in which the DDP does not have to be followed.  Ms Klusova, a Russian National, had been employed by the Council since November 2000.  When the Council made enquiries as to Ms Klusova’s immigration status in May 2005, the Immigration Service confirmed that her leave to remain in the UK had expired in May 2004 and she did not have permission to continue working.  The Council sought documentary material from Ms Klusova about her entitlement to work but, although she claimed to have made an application for indefinite leave to remain before the expiry of her visa, she could not produce any evidence and so was dismissed by letter in August.

Ms Klusova brought a claim for unfair dismissal on several grounds, one of which was that the dismissal was automatically unfair as the DDP had not been followed.

The EAT has now held that, as Ms Klusova was dismissed because she could not continue in employment without contravening a statutory enactment (in this case the Asylum and Immigration Act 1996), the DDP did not apply.  Regulation 4 (1) (f) of the Dispute Resolution Regulations expressly excludes such dismissals from the scope of the DDP.  As a result, the dismissal was not automatically unfair, and on the facts, procedural fairness was unquestionable.

Although this case is a good reminder that there are some cases in which the DDP does not apply, there is a warning for employers steming from the fact that an employer could believe that they were entitled to dismiss for contravention of a statutory enactment but with the tribunal later finding otherwise.  In those circumstances, the employer will unwittingly have breached the DDP, which would render the dismissal automatically unfair.  It is, therefore, advisable to follow the DDP even in circumstances such as this.

View the full Bailii case report

Employees with less than 1 year’s service

A question that we are frequently asked is whether the DDP needs to be followed in relation to employees with less than 1 year’s service.  In the case of Scott-Davies v Redgate Medical Services the EAT has confirmed that it does not.  When Mr Scott-Davies was dismissed by his employer, the DDP was not followed as he did not have the 1 year’s service required to bring a claim of unfair dismissal.  Nevertheless, Mr Scott-Davies argued that he had a claim because of the employer’s failure to follow the DDP.

The EAT has confirmed that there is no right to bring a complaint for breach of the statutory procedure in isolation.  Where employees do not have the necessary service required to bring a complaint for ordinary unfair dismissal, the failure by the employer to follow the DDP will not create a free standing claim.

Although this is a good result for employers, it is nevertheless risky to dismiss an employee without following the DDP even when they have less than a year’s service.  If an employee was to be able to bring a successful claim for something else (for example, sex or disability discrimination or failure to pay outstanding holiday pay) then their lack of service would be irrelevant and the employer would be at risk of any award made in respect of such claims being uplifted by between 10% and 50% on the basis of the failure to follow the DDP.

View the Scott-Davies v Redgate Medical Services full case report

Step 1 letters

Two recent EAT decisions have helped to give much needed clarification of exactly what is required of employers to ensure that they have complied with the DDP. In the case of Draper v Mears Ltd, when Mears Ltd wrote to Mr Draper inviting him to the disciplinary meeting, they had stated only that they were considering taking action against him because of “conduct which failed to reasonably ensure the health and safety of oneself and others”.  It did not specifically identify the allegation which was the consumption of alcohol prior to or during the driving of company vehicles contrary to the company’s well known “zero tolerance” policy, largely because Mr Draper had been caught “red handed”.

The EAT decided that the letter was sufficient to comply with the DDP because a Step 1 letter needed to do no more than set out in broad terms the general nature of the misconduct alleged.  The tribunal found that where the wording of such letters was ambiguous, the tribunal was entitled to consider the whole context including whether the employee knew what the allegations were.

Whilst this is a helpful decision, it is not one to be relied upon.  Step 1 letters should specifically set out the nature of the allegations being made against the employee and the basis for those allegations. The letter should also make it clear that the employer is contemplating dismissal or other disciplinary action on account of those allegations.

The problem in YMCA v Stewart was slightly different. In that case, Mrs Stewart was sent a detailed letter outlining the issues and inviting her to an investigatory meeting after which she was invited by telephone to a further disciplinary meeting. It was after the second meeting that Mrs Stewart’s dismissal was confirmed.

The EAT held that employers merely have to comply with the exact wording of the DDP. This meant that Mrs Stewart’s dismissal was not automatically unfair because she had received a letter containing details of the alleged misconduct and had been invited to a meeting to discuss the allegations – the fact that she had been sent this letter at the beginning of the investigation stage rather than immediately prior to the dismissal meeting was irrelevant.

This case certainly provides useful guidance for employers who have procedures in place incorporating a two-stage meeting process. Although the initial letter is sufficient, a safer course of action is always to write to the employee when inviting them to the final meeting.

Draper v Mears Ltd case report
YMCA v Stewart case report


Back to Employment Law E-Bulletin Feb 07