Discipline & Dismissal Procedure

by Hazel Phillips

When the statutory Dismissal and Disciplinary Procedures (DDP) came into force on 1 October 2004, they represented the most significant change in the handling of disciplinary matters since the introduction of the concept of unfair dismissal in 1971.

The legislation introduced a new minimum standard to follow when dealing with disciplinary or dismissal situations.  The legislation sets out both a standard procedure and a modified procedure but the modified procedure is only to be used in extremely limited circumstances.  These statutory procedures are implied into all contracts of employment and must be followed whenever dismissal or disciplinary action is contemplated. The procedure does not have to be followed for warnings or paid suspension, but it does need to be used whenever the employer is considering demotion or transfer to a new role.  It should also be used for dismissal on non disciplinary grounds; for example, ill health, poor performance, individual redundancy and expiry of fixed term contracts.

The importance of following these procedures cannot be underestimated.  Failure by an employer to comply means that a dismissal will be automatically unfair (although an employee still needs 12 months’ qualifying service to bring an unfair dismissal claim).  No matter how grave an employee’s misconduct nor how certain the employer might be of the employee’s guilt (for example, even when an employee is caught “red-handed” stealing from their employer) an employee who is dismissed without the DDP having been followed will succeed in a complaint of unfair dismissal. 

However, employers should remember that it does not necessarily follow that merely by complying with the DDP, the dismissal will be fair.  To establish a fair dismissal, the employer must comply with the DDP but must also show that there was a potentially fair statutory reason for the dismissal and that the employer acted reasonably in connection with that dismissal.

Standard DDP

The three steps which must be followed under the standard procedure are:

1. The employer must write to the employee setting out the nature of the employee’s misconduct or the circumstances which have led the employer to contemplate dismissing the employee or taking relevant disciplinary action.
2. Having allowed the employee a reasonable opportunity to consider his or her response to that statement, the employer must invite the employee to a meeting to discuss the matter.  After the meeting, the employer must inform the employee of the decision in writing and of the employee’s right to appeal.
3. If the employee wishes to appeal, the employer must invite the employee to a further meeting, which should be heard by a more senior manager if possible.  Again, after the meeting the employer must inform the employee of the final decision in writing.

Modified DDP

This procedure should only be followed where the employer has already dismissed the employee in a situation where it is reasonable to do so without notice and without investigating the circumstances.  In practice, it is dangerous to assume that no investigation is necessary.  If the employer is shown to be wrong, the dismissal will be automatically unfair.  As it is so risky to use this procedure, our advice is never to rely upon it and we have therefore chosen not to cover it as part of this bulletin.  If it is something that you wish to use, you should always seek legal advice first.

Although we have now lived with these procedures for two years, there has been no noticeable drop in the number of claims.  In fact, the only result has seemed to be that the process of dismissing an employee has become more bureaucratic and confusing.  The Government has recently commenced a review of the procedures and their impact on claims and employers; we can only hope that this review will lead to fundamental changes in the procedures but in the meantime, all employers must continue to be aware of the impact of the statutory rules and ensure that they follow them at all times.

Back to Employment Law E-Bulletin Feb 07
Cases in Full - Feb 2007

For further information on discipline and dismissal or any other employment lasw issue, contact Burnetts' employment team on 01228 552222.