Delay in disciplinary procedure does not make dismissal automatically unfair

Employers who delay in carrying out any part of the statutory disciplinary procedure do not make the dismissal automatically unfair, provided all the steps in the procedure have been carried out, according to a recent court of appeal decision.

A number of employees were dismissed by their employer, following the statutory disciplinary procedure, but there was a delay of four months between the employees appealing against dismissal and their appeals being heard.

If the procedure is not 'completed' employees are treated as automatically unfairly dismissed, and the employer may have to pay additional compensation of between 10 per cent and 50 per cent. On a claim by the employees that their dismissal was automatically unfair, the employment tribunal found that the procedure had been completed, albeit after some delay, and so the dismissal was not automatically unfair. The Employment Appeal Tribunal (EAT) disagreed, relying on a line of cases that equated unreasonable delay with a failure to complete.

However, the Court of Appeal overruled the EAT, and the line of cases that it relied on, and stated that the dismissal was not automatically unfair because, giving the term its ordinary meaning, the statutory procedure had been 'completed'. The court emphasised the distinction between a procedure not having been completed, on the one hand, and a failure by the employer to comply with the requirements of a procedure, on the other.

However, this ruling relates only to automatically unfair dismissals (possibly giving rise to an increased award of up to 50 per cent). A delay during a completed procedure may still be relevant to the issue of reasonableness of ordinary unfair dismissal.

Recommendation

Employers should ensure that there is no delay in carrying out disciplinary procedures, even if they are eventually completed.