Road Legal

Disciplinary and dismissal procedures

07 January 2007

Statutory dismissal and disciplinary procedures (DDPs) are defined by the relevant sections of the Employment Act 2002 and The Employment Act 2002 (Dispute Resolution) Regulations 2004.

With very limited exceptions, outlined below, they must be followed by both employer and employee. If an employer does not follow the DDP, any dismissal will be automatically unfair and subject to a minimum basic award and the compensatory award will be increased by between 10% and 50%. If the employee does not follow the DDP but brings a successful claim, any compensation awarded will be decreased by between 10% and 50%.

There are two types of DDP: the standard dismissal and disciplinary procedure (SDDP), which is applicable to almost all cases where an employer is contemplating dismissing or taking “relevant disciplinary action” against an employee, and the modified dismissal procedure (MDP ), applicable to some gross misconduct cases. The SDDP also applies in redundancy cases where less than 20 staff are being made redundant, in retirement cases and where fixed-term contracts are not being renewed.

SDDP

An employer is required to follow three minimum steps:

Step 1: Statement of grounds for action and invitation to a meeting

The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which have led it to contemplate dismissing or taking disciplinary action against the employee; or the reasons for redundancy or not renewing their fixed-term contract.

The employer must send the statement to the employee and invite the employee to a meeting to discuss.

Step 2: Meeting

The meeting must take place before action is taken and the meeting must not take place unless:

The employer has informed the employee what the basis was for including in the statement under Step 1 the ground or grounds given in it; and
The employee has had a reasonable opportunity to consider his or her response to that information.

After the meeting, the employer must inform the employee of its decision and notify him or her of the right to appeal.

Step 3: Appeal

If the employee wishes to appeal, he or she must inform the employer.

The employer must invite the employee to attend an appeal meeting.

The appeal meeting need not take place before the dismissal or disciplinary action takes effect.

After the appeal meeting the employer must inform the employee of its final decision.

Note: An employer is also required to ensure that it complies with unfair dismissal legislation. Following the SDDP may not guarantee a fair dismissal - employers should ensure that they consider all of the circumstances of a case and follow all appropriate procedures or best practice prior to making a dismissal.

MDP

In almost all cases an employer will need to let an employee make representations or explain his/her conduct before dismissing and for this reason, the MDP should only be used in very limited circumstances, if at all.

Step 1: Statement of grounds for action

The employer must set out in writing:

The employee's alleged misconduct which has led to the dismissal;
What the basis was for thinking at the time of the dismissal that the employee was guilty of the alleged misconduct; and
The employee's right to appeal against dismissal.

The employer must send the statement to the employee.

Step 2: Appeal

If the employee does wish to appeal, he or she must inform the employer.

The employer must then invite the employee to attend an appeal meeting.

After the appeal meeting the employer must inform the employee of its final decision.

General requirements for the SDDP and the MDP

There are no strict deadlines for the procedures, but each step and action under the procedure must be taken without unreasonable delay.

It’s worth noting that rules apply to the meetings:

The timing and location of meetings must be reasonable;
meetings must be conducted in a manner that enables both employer and employee to explain their cases;
the employee must take all reasonable steps to attend the meeting;
the employee has a right to be accompanied by a trade union representative or fellow employee;
and in the case of appeal meetings which are not the first meeting, the employer should, so far as is reasonably practicable, be represented by a more senior manager than attended the first meeting.

Exemptions

An employer and employee are not required to follow the DDPs where:

An employer is making 20 or more employees redundant within a 90-day period.
The reason for dismissal was that the employee was engaged in official or unofficial industrial action.
An employer’s business suddenly and unexpectedly ceases to function and it would be impractical to employ any employees.
An employee could not continue to work in a position which they held because it would contravene a statutory duty.
Factors are beyond the control of either party.
There is an alternative designated dismissal procedure (such as between a trade union and an employer’s association).
One party has been subject to harassment.
Either party adopts violent or abusive behaviour.
Either party fails to attend a meeting. The employer is required to rearrange the meeting, but only once. If the second meeting falls through, neither party is under any obligation to complete the procedures.

Statutory grievance procedure

There is a separate statutory grievance procedure which needs to be followed where an employee raises an issue which is capable of forming the basis of a complaint in an employment tribunal. A complaint about a decision to dismiss should be dealt with under the appeal part of the SDDP. However, if a free-standing allegation about the dismissal is made, such as an allegation that the dismissal was discriminatory, that complaint should be dealt with under the grievance procedure.