Iain Patterson looks at what public sector organisations can do to minimise the risks of financial penalties and public scrutiny when dismissing staff.
An increasing number of public authorities are facing tribunal claims which include 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.
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.
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 local authority may be able to use this evidence to mitigate any compensatory uplift in the event that one is made.
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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. However, the ACAS 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
Iain Patterson is an employment partner at Browne Jacobson
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 local authority may be able to use this evidence to mitigate any compensatory uplift in the event that one is made.
