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Employment

Delay in completing the SDP does not render a dismissal automatically unfair

The Court of Appeal has confirmed in Selvarajan v Wilmot that a failure to comply with a general requirement of the statutory dismissal procedures (SDP), such as undertaking each stage without unreasonable delay, will not, in itself, render a dismissal automatically unfair. In doing so, the Court of Appeal has overturned recent EAT decisions in this area.

Background
The employer must complete all three of the stages of the SDP; and a failure to do so may render the dismissal automatically unfair.

In the Selvarajan case, the claimants were dismissed for misconduct and appealed against the decision to dismiss them. The outcome of their appeal was not decided until four months after the date of dismissal. The claimants lodged several tribunal claims against their employer, including a claim for automatic unfair dismissal as a result of their employer not completing the SDP.

The Court of Appeal held that "complete" has its ordinary meaning and a failure to comply with a general requirement did not constitute a failure to complete the SDP. Therefore, as the SDP had been completed the dismissal was not automatically unfair.

Impact on employers
This case will be of some comfort to employers in confirming that delay in completing the three-stage SDP will not, in itself, give rise to an automatic unfair dismissal claim. However, a tribunal will still be entitled to take into account unreasonable delay in deciding whether the employer has acted reasonably in the context of an ordinary unfair dismissal claim. Therefore best practice is to ensure that each stage in conducting disciplinary and dismissal procedures is dealt with in good time.

The statutory dispute resolution procedures are due to be replaced by a new ACAS Code of Practice on Discipline and Grievance. The Code of Practice recommends that disciplinary and dismissal issues should be dealt with fairly and in good time. Whilst a failure to follow the Code will not give rise to automatically unfair dismissal claims, tribunals will have the discretion to adjust compensatory awards by up to 25% where there has been an unreasonable failure to comply with the ACAS Code. We will be running training on the new Code of Practice, for more information please contact please email Sheila Gunn, Blair Adams or Kim Pattullo.