healthcare update - issue 14
Making time of the essence - the consequences of delaying employment appeals and how to avoid them
Although the repeal of the statutory disciplinary procedures
relaxed the statutory requirements on employers, the need to hold
appeals expeditiously has in fact become even more important
because of the Tribunals new discretion to increase compensation by
up to 25% where an employer has failed to comply with
procedure.
Despite this many employers are being caught out by failing to
hold appeals quickly enough after dismissal and we have noted
increasing numbers of tribunal claims against public authorities
which have included 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.
This article looks at the legal position and 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 (“the Code”).
However, The 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
Summary
Old procedures:
Procedure completed
If the dismissal procedure has been technically completed (e.g.
the appeal hearing has taken place), there is no automatically
unfair dismissal but still a risk of a finding of ordinary unfair
dismissal. If there has been a lengthy delay at any stage, the
tribunal may decide that a fair procedure has not been followed and
that the employee has, therefore, been unfairly dismissed.
Procedure not completed
If the employee feels that there has been an unreasonable delay,
he may decide to boycott further stages of the procedure and hold
the employer responsible for the non-completion. This may result in
a finding of automatically unfair dismissal.
New procedures:
Procedure completed
If there has been unreasonable delay the Tribunal may conclude
that it has caused the dismissal to be unfair. In any event it may
order an increase in compensation awarded if it concludes there was
an unreasonable failure to follow the Code.
Procedure not completed
A failure to allow a right of appeal is likely to result in a
finding of unfair dismissal. The Tribunal is also likely to award
an increase in compensation by up to 25%.
The tribunal may find that the procedure has not been completed
if the employer unreasonably refuses to allow the appeal, even
though, according to the employer’s policy, the employee is
technically out of time. This may also result in a finding of
unfair dismissal. The employer should always consider the
individual circumstances before refusing to allow an appeal on the
basis that it is time-barred internally.
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 Trust may be able to use this evidence
to mitigate any compensatory uplift in the event that one is
made.
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The content of this update is provided for the purposes of
general interest and information. It contains only brief summaries
of aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
not provide a substitute for it.