Disciplinary and dismissal - employee must be told of his potential fate

11 February 2009

When contemplating disciplinary action or dismissal, the employer must, under the current statutory procedures, “…set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action…” (the ‘Step 1 letter’). Failure to do so makes a subsequent dismissal “automatically unfair”.

The Employment Tribunal found, in the case of Brezan v Zimmer Limited, that a failure by the employer to indicate in the ‘Step 1 letter' that the employee was at risk of dismissal fell short of the statutory requirement.

The written notice sent to Mr Brezan confirmed that he should attend a disciplinary meeting to discuss his mileage and expenses claims. A copy of the “lengthy and detailed” Zimmer Disciplinary Policy was attached. It did not mention the possible outcome of the meeting.

The dismissal was, therefore, “automatically unfair”.

The employer, Zimmer Limited, appealed to the Employment Appeal Tribunal on two grounds:

• first that the wording of the statute does not require an employer to set out the possible outcome, only sufficient information as to the “conduct or characteristics” of the employee;
• second, that, in any event, by referring the employee to the disciplinary policy, in which the outcomes for certain types of conduct were described, the employer had complied with its duty.

As to the first, the EAT said  that “…unless the employee is enabled to understand from the step 1 letter that he is at risk of dismissal, in our judgment the purpose of the Step 1 letter in a dismissal case cannot be properly achieved. The employee is plainly entitled to have some idea what type of sanction is in the mind of the employer…”

On the second point, the EAT found that no reference had been made, by the employer, to how serious Mr Brezan’s conduct was considered to be. In turn, he could not look to the policy to gauge what his fate might be. Further, the policy was very detailed and the step 1 letter did not draw “…attention to any specific part of the lengthy disciplinary document.” It was impossible to tell what the employer was thinking.

The Tribunal’s decision, that there had been an “automatically unfair” dismissal, was correct. The employer’s Appeal was dismissed.

Comment
The statutory procedures are widely considered to be schematic and mechanistic. They are due to be repealed and replaced with a new ACAS code of conduct on 6 April 2009. Until this date, however, employers must comply with their obligations under the current statutory regime, when contemplating disciplining or dismissing an employee. The case of Brezan v Zimmer is a good reminder that a failure to do so will render the dismissal indefensible irrespective of the employee’s conduct (although it will be relevant to the question of remedy).