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.

talk to us


picture of Iain Patterson
Iain Patterson
0121 237 3924
Partner
   

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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.

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