UK Employment Alert No. 126 - Contractual Disciplinary Procedure More Onerous than DDP
November 29, 2006
| The Background |
The statutory dismissal and disciplinary procedure (DDP) sets out a 3 step process, as follows:
- Step 1: A statement of the circumstances which led the employer to contemplate dismissing or taking disciplinary action against the employee and an invitation to a meeting.
- Step 2: The meeting. The meeting must not take place unless the employer has informed the employee what the basis was for including in the Step 1 statement the ground or grounds given in it.
- Step 3: The appeal. If the employee wants to appeal, they must inform the employer. The employer must then invite them to attend a meeting which the employee must take all reasonable steps to attend. After the appeal meeting, the employer must inform the employee of its final decision.
Many employers have written disciplinary procedures which are more detailed than required under the DDP.
| The Facts |
In Masterfoods v Wilson, the employer’s disciplinary procedure required an employee to provide written grounds of appeal within 5 working days of the decision to dismiss. The employee confirmed that he wished to appeal within the timeframe and said that he would provide his grounds of appeal as soon as possible. An extension of time was given. The employee did not provide the grounds until after this extension had expired. He was informed that his appeal would not, therefore, be heard.
| The Decision |
The EAT held that by simply confirming his wish to appeal, the employee had complied with his obligations under the DDP. By preventing the employee from appealing because he had not provided written grounds of appeal was a breach of the DDP. This rendered the dismissal automatically unfair.
| What this means for employers |
Many employers will have disciplinary procedures which impose steps in addition to those required by the DDP. If an employee fails to comply with one of the additional steps, the employer should not rely on that to end the process.
Once an employee has informed the employer that they wish to appeal, he/she will have complied with the DDP (even if it is not in writing or does not set out the grounds of appeal). The employer should then invite the employee to a meeting, which should be held without unreasonable delay. To ensure compliance with this requirement, employers should set a date for the appeal meeting even if the employee has not provided their grounds of appeal.
If the employer does not wish to proceed with the appeal meeting until grounds have been received, it should seek the employee’s agreement to the delay. If this is agreed between the parties, it is less likely that a tribunal will hold that such a delay is unreasonable.
Otherwise, the employer should proceed with the appeal meeting even in the absence of grounds of appeal, which will come out during the meeting. The person hearing the appeal may then need to investigate the issues that the employee raised during the meeting. As part of that process he may (but may not) need to meet with the employee again before reaching his decision. The unfortunate consequence of not being able to insist that the employee provides grounds of appeal before the (first) appeal meeting is that there may need to be two appeal meetings.
