article
Making time of the essence
6 July 2010
An increasing number of public authorities are facing tribunal
claims which include allegations of unreasonable delay in
completing the dismissal process. These allegations include the
investigation process taking too long, and too much time elapsing
between the dismissal and appeal hearings.
Iain Patterson, an employment partner at Browne Jacobson, looks
at the legal position and explores what public sector organisations
can do to encourage efficiency and minimise the risks of financial
penalties and public scrutiny.
Under the Statutory Dismissal and Disciplinary Procedures
(SDDPs) employers were required to follow minimum procedures, which
included a right to an appeal. A failure to comply with those
procedures would result in an automatically unfair dismissal and in
most cases an increase in any compensation awarded to a successful
claimant.
Those procedures were abolished in April 2009, leaving employers
to follow their internal procedures and the revised ACAS Code of
Practice on Disciplinary and Grievance procedures. However, the
ACAS Code states that disciplinary and dismissal procedures should
be dealt with ‘without unreasonable delay’. Although this
requirement existed under the SDDPs, problems only arose for
employers where there was a failure to complete the procedure which
was the fault of the employer. Accordingly, provided that the
procedure was completed there was no automatically unfair
dismissal, even in cases where it took a year to hear the
appeal.
The difference under the ACAS Code is that a tribunal can
increase compensation by up to 25% where it finds that there has
been a failure to comply with the Code. Pure delay, even where the
appeal does finally take place, will lead to a failure to follow
the Code. Furthermore, although unfair dismissal can no longer be
automatically unfair for dismissals where the new procedures apply,
a lengthy delay could still make the dismissal ‘substantively’
unfair.
The old procedures were repealed with effect from 6th April 2009
and so now only apply to ongoing cases where the transitional
arrangements apply. The old procedures apply in cases where the
employer has on or before 5th April 2009:
- Sent a Step 1 written statement under the standard or modified
procedure (whether or not they have also invited the employee to a
meeting)
- Held a Step 2 meeting under the standard procedure
- Taken "relevant disciplinary action"
- Dismissed the employee
Top tips
- Appoint a designated individual who has responsibility for
co-ordinating arrangements for any appeal hearings and ensuring
that appeal hearings are set up without delay.
- Consider implementing an internal procedure for dealing with
appeal hearings so that the steps to be taken and timeline in which
they should be implemented are clear. For example: it is best
practice to ensure that appeals are heard within weeks of the
disciplinary or grievance hearing.
- Diary co-ordination of senior management may be difficult if an
appeal needs to be arranged ‘without unreasonable delay’. It may,
therefore, be worthwhile blocking out dates for a likely appeal
panel on a weekly or monthly basis so that the required people can
be available to hear an appeal at short notice if it is
necessary.
- Ensure that there is money set aside to make any additional
payments so that any awards are fully auditable and compensation is
not unfairly diverted from other budgets.
- Monitor the number of appeals and their outcomes and report on
them regularly. This will assist you in determining whether your
internal procedures are sufficient and allow you to identify any
problems or trends which may need addressing.
- Ensure there is a clear audit trail of the procedures followed
and arrangements made. The local authority may be able to use this
evidence to mitigate any compensatory uplift in the event that one
is made.
This artice was first published on www.localgovernmentlawyer.co.uk
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