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Disciplinary and grievance procedures
20 August 2007
Most employers are now used to the idea that,
even where dismissal is obviously deserved, they must go through
the statutory dismissal procedure or the dismissal will be unfair
and if they do not follow their own internal dismissal procedures
as well, the dismissal will probably be unfair, unless they can
prove the employee would have been dismissed anyway.
But what happens where the employee fails to
comply with the company's (but not the statutory) procedures?
The answer is employers must still comply with the statutory
dismissal procedures even if that means ignoring failures by the
employee to comply with the contractual procedure.
The same applies to grievance procedures, but
the penalty of 'automatically unfair dismissal' does not apply.
Time limits for appeal
Many disciplinary procedures set a time limit
for appealing – for example, five working days.
If an employee fails to comply with this time
limit and submits an appeal late, the employer can only safely
ignore the appeal if it has been submitted so late as to be
'unreasonable' – irrespective of the time limit set out in the
company’s disciplinary procedure.
For example, In Khan and Another –v- Home
Office EAT 0026/06 and 0250/06, a delay of three months for
lodging an appeal was held to be unreasonable so the employers
could safely ignore it. However, in Codemasters Software
Company Limited –v- Wong EAT 0639/06, a notice of appeal 87
days after dismissal, where the internal appeal procedure set down
a time limit of five working days, was held not to be unreasonable
because the employee had obtained incorrect legal advice that he
was allowed to lodge his internal appeal at any time within the
normal time limit for unfair dismissal.
Our advice to employers faced with a late
appeal notice from dismissal, therefore, is:
- Ask the employee why it has been submitted so late
- Once it has received an answer, judge whether the appeal was
submitted unreasonably late
Procedure for setting dates of
hearings
Some employers' procedures or normal practices
involve agreeing a date for a hearing. If the employee or
their representative does not co-operate or provide suitable or
convenient dates for a hearing, the employer must set a date for
the hearing. Step two of the statutory dismissal, grievance
and disciplinary procedures all require the employer to actually
invite the employee to a meeting specifying the date, time and
place, etc. Unsuccessfully attempting to agree a date
for the hearing, even if the failure is entirely the employee's
fault, still puts the employer in breach.
Informal resolutions must not delay
formalities
It is tempting, if an employee indicates they
are willing to agree a compromise termination package instead of
going through a statutory dismissal or grievance procedure, to halt
the statutory procedures while informal negotiations take
place. To do so, however, may put the employer in breach of
the requirement to hold all hearings and take all steps under the
procedure within a reasonable time. If an employee indicates
they would like to negotiate a compromise termination package
instead of going through the procedure, still set a date for the
formal hearing, agree it, if possible, with the employee, before
starting the compromise negotiations and then aim to complete the
negotiations before the date of the hearing.
Some internal grievance procedures provide for
an informal stage, where there is an informal meeting not to
determine the grievance but to discuss what the employee is looking
for and whether it can be achieved without going through the
procedure. Again, employers must not allow this stage to
delay a determination of the grievance. If the employee does
not co-operate with the informal stage, employers will have to move
on to the formal stage even if the employee's lack of co-operation
is a breach of the company's grievance procedure.
The future
Fortunately, the Government has recognised the
impracticability of some of the statutory procedures. Instead
of abandoning them completely they are proposing to modify the
dismissal and disciplinary procedures and only abandon the
grievance procedures.
For more information or advice, please
contact Edward.
The content of this bulletin 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.