Following the introduction of the statutory dismissal and disciplinary procedures in October 2004, employers considering disciplining or dismissing an employee are required to follow a minimum three-stage process. They must
1. Inform the employee in writing of the reason why they are considering disciplining or dismissing them;
2. Hold a meeting to discuss the reason. The employee should have had a reasonable opportunity to consider their response to the employer's statement before the meeting; and
3. Inform the employee of the decision and of their right to appeal if they are not satisfied with it.
In YMCA Training v Stewart, The Employment Appeal Tribunal has taken a fairly relaxed approach to the statutory requirements.
Mrs Stewart was employed by the YMCA as a training adviser. On 8 September 2005, one of her colleagues contacted their joint line manager and alleged that Mrs Stewart had falsified the work experience records of three trainees. The line manager telephoned Mrs Stewart to tell her that she was suspended and she was invited to an investigatory meeting. Mrs Stewart received a letter and a copy of the colleague's witness statement. At the meeting on 12 September, all the charges against Mrs Stewart were discussed. With regard to the falsified documents, Mrs Stewart denied any wrongdoing but the originals were inexplicably missing.
On 20 September, Mrs Stewart attended a disciplinary hearing. At that meeting the line manager told her that she could not accept her account of events and she was therefore dismissed. Mrs Stewart appealed unsuccessfully to the YMCA and then brought a claim for unfair dismissal.
The Employment Tribunal (ET) was critical of the YMCA's disciplinary procedure and considered that steps one and two of the statutory procedure had not been followed. It therefore found that Mrs Stewart had been automatically unfairly dismissed. However, the ET made a 60 per cent reduction in the compensation awarded because it believed that it was more likely than not that Mrs Stewart would have been (fairly) dismissed if the YMCA had followed a proper procedure.
The YMCA appealed to the Employment Appeal Tribunal (EAT).
The EAT was not unanimous but ruled that Mrs Stewart's dismissal had not been automatically unfair. Automatic unfair dismissal applied when an employer failed to conduct even a basic investigation. The YMCA had essentially complied with the statutory requirements. They had held the step 1 and 2 meetings required by the law, albeit with slightly different headings. Mrs Stewart was fully informed of the allegations and given time to consider them. In the EAT's view an initial investigatory meeting could be a Step 1 meeting and it is acceptable to give notification of dismissal during a Step 2 meeting.
Usually, this decision would mean a further ET hearing to consider if the dismissal was unfair in accordance with s98 of the Employment Rights Act 1996. However, s98A (2) of the Act states that a decision to dismiss will not be unreasonable if it can be shown that, even if the correct procedure had been followed, the employee would have been dismissed anyway. Parliament's intention was to deny a remedy for unfair dismissal if this is proven to be the case.
As the ET had found that it was more than likely that Mrs Stewart would have been dismissed had the correct procedure been followed, the EAT ruled that the claim for unfair dismissal should be dismissed entirely.
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