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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 companys (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 companys 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 employees 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 employees lack of co-operation is a breach of the companys 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.

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The content on this page 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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