Statutory Dismissal Procedures - Unreasonable Delay.

The Court of Appeal has considered, for the first time, whether an unreasonable delay on the part of an employer in completing the statutory dismissal procedure makes the dismissal automatically unfair (Selvarajan v Wilmot).

Three employees, who worked as receptionists at a medical practice, were dismissed on the grounds of their conduct because they had claimed and been paid for unauthorised overtime. One of their claims against the employer in the Employment Tribunal (ET) was that the dismissals were automatically unfair because the employer took almost four months to carry out the appeal procedure and so had failed to complete the dismissal procedure within a reasonable time. The employer argued that even if there was an unreasonable delay in dealing with the appeal, the dismissals could not be automatically unfair as all three steps of the statutory dismissal procedure had been completed.

The employees failed in their claim on this point in the ET. In its judgment the procedure was completed and there was therefore no failure to comply with the statutory requirements. The employees appealed against the decision. The Employment Appeal Tribunal (EAT) rejected the ET's argument. In doing so, it followed prior decisions of the EAT that a failure to comply with the general requirements of the statutory procedure precludes its completion and one of these requirements is that the required steps should be taken without unreasonable delay.

However, the Court of Appeal has gone against the line of EAT authorities and overturned the EAT's decision. The Court held that a failure to comply with a requirement of a procedure is not itself a failure to complete it. In this case, even though there had been a delay, the statutory dismissal procedure had been completed. Mummery L J concluded that, "the question whether the procedure has been completed must be addressed before the question of non-compliance with the general requirements of the procedure. If the procedure has been completed, the question whether there has been non-compliance with the general requirements of the procedure never arises." The dismissals were not, therefore, automatically unfair.

The statutory dispute resolution procedures which applied in this case are set to be repealed in April 2009 by legislative reforms contained in the Employment Bill. They will be replaced by non-legislative measures aimed at improving and simplifying dispute resolution in the workplace. Until that time, however, an employee who believes their employer is responsible for an unreasonable delay in complying with the procedures has the option of withdrawing from the process before it is completed and bringing a claim of automatically unfair dismissal. Where an employer has failed to follow the statutory procedures, the compensation award can be increased by up to 50 per cent. However, should the ET hold that the employer's delay was not unreasonable, the employee will be held responsible for the non-completion of the procedure.

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