Dismissal – If In Doubt Use the Statutory Disciplinary Procedure

The recent case of Klusova v. London Borough of Hounslow is a good example of how a failure to follow the Statutory Disciplinary Procedure can have disastrous consequences for an employer. He may well find himself paying out substantial compensation on a claim in relation to which he had a perfectly good defence

Unfair Dismissal – The Reason for the Dismissal

To successfully defend a unfair dismissal claim, an essential step is for the employer to show that the reason for the dismissal was a permissible reason. These include capability, conduct, redundancy and retirement. They also include:
• That the employee could not continue to work in the position that he held without breaking the law; and
• That there was some other substantial reason that justified the employee’s dismissal.

The Statutory Disciplinary Procedure

Generally, an employer must follow the Statutory Disciplinary Procedure when dismissing an employee where the reason for the dismissal was capability, conduct, redundancy or some other substantial reason. The Statutory Disciplinary Procedure does not apply to retirement (where it may be necessary to follow a different procedure). Nor does it apply where continued employment of the employee would be impossible without breaking the law. If an employer fails to follow the Statutory Disciplinary Procedure when required to do so, the dismissal will be automatically unfair, regardless of the reason for it. The only issue will be that of remedy. Generally speaking, the compensation which would have been awarded to the employee, had the Statutory Disciplinary Procedure been followed, will be subject to an uplift in the region of 10% - 50%.

The Klusova Case

In the Klusova case K, a Russian national, began working for the Hounslow Council in November 2000. She had leave to remain in the UK until May 2004 and was entitled to work in this country. Before her leave to remain expired, K applied for indefinite leave to remain which, she claimed, entitled her to continue working in the UK. The Home Office was little help, with different offices saying different things at different times. Eventually, the Council bit the bullet and dismissed K. It did so on the basis that it would commit a criminal offence under Section 8 of the Asylum and Immigration Act 1996 if it continued to employ K. It did not follow the Statutory Disciplinary Procedure.
Eventually, the case was heard by the Court of Appeal. The Court ruled:
• K was correct. She had been entitled to continue working in the UK. Her continued employment would not have resulted in a contravention of the law – i.e. the Asylum and Immigration Act 1996.
• Bearing in mind the conflicting advice it had received, the Council had genuinely believed that it could not lawfully continue employing K, and it was entitled to dismiss her.
• However, the Council had failed to follow the Statutory Disciplinary Procedure. Accordingly, K’s dismissal was automatically unfair.
The Court of Appeal sent the case hack to the Employment Tribunal to decide how much compensation should be paid to K..

Conclusion

The moral of the tale is clear. If there is any doubt at all as to the applicability of the Statutory Disciplinary Procedure, the employer should always err on the side of caution and follow the Procedure.
If you would like to know more about the rules relating to the Statutory Disciplinary Procedure, please contact Nick Crook or Gareth Pobjoy.
See also Employing People Subject To Immigration Control – Changes Are On The Way

Filed: 22/11/2007 17:02:43