SDP - could the outcome be dismissal?

In the recent case of Homeserve v Dixon the Employment Appeal Tribunal reversed a decision by the Tribunal and found that there may be situations where it may be implied that a formal meeting to consider a charge of fundamental breach of contractual obligations may result in dismissal even where no mention is made of this in the letter notifying the employee of the disciplinary hearing. In such situations there would be no need to specifically inform the employee that he is at risk of dismissal.

This appears to be in stark contrast with the Statutory Disciplinary Procedure and earlier case law which indicates that the employee should be in no doubt that dismissal could be the outcome of the hearing.

D was employed as a Service Engineer for H. He and a colleague were spotted by their manager fitting a door for the colleague’s neighbour. D’s van was parked outside the property whereas he only had authority to drive it between work and his home. They were also using H's equipment to do the job. Their manager confronted them there and then. They subsequently received a letter inviting them to a meeting where “the following allegations: - breach of contractual obligations, namely conducting private business using company property” were to be discussed and that their manager would present information regarding the allegations. They were told of their right to be accompanied and were suspended on full pay. No mention was made of the possible consequences of that meeting. The decision was taken to dismiss them, a decision which was subsequently upheld on appeal.

The tribunal held that, whilst D contributed 100% to his dismissal and was therefore not entitled to a compensatory award, he was entitled to the minimum basic award for automatic unfair dismissal due to the fact that he had not been informed of the potential consequences. This finding was appealed by his employers.

The EAT reversed this decision, firstly because of the nature of the case – the two employees had been caught and confronted on the spot by their manager and had essentially admitted their liability. Therefore because the letter referred to the manager presenting information regarding the allegation it should have been clear what the potential consequences were. Additionally the employee had never complained about the fact that he was inadequately prepared for the meeting.

Protecting your business – how this affects you.

Although this decision seemingly offers more protection to employers when following the statutory disciplinary procedures, the EAT itself stated that it was based closely around the facts of the case. The fact that the two employees were caught red handed by their manager and confronted on the spot, coupled with the fact that the letters they were sent referred to evidence being brought by the manager was enough for them to be aware of what the meeting would be about and that the potential consequences included dismissal. The other key element the EAT took into account was that throughout the internal process D did not complain about being disadvantaged by the information he had received – had he done so it is likely that the decision would have been different.

It therefore remains of paramount importance for employers to continue to follow the statutory procedures closely and rectify any instances where the procedure has not been followed promptly, particularly where the employee has raised any grievances or reservations.