Veitch Penny LLP - Exeter | Crediton, Devon

Case

Draper v Mears Limited
Employment Appeal Tribunal - (5 September 2006)

Issues

(1) Disciplinary proceedings;
(2) Misconduct;
(3) The Employment Act 2002 (Dispute Resolution) Regulations 2004 (“the Regulations”)

Facts

In December 2002, Mears Limited (“Mears”) employed Mr Draper as a Plumber. He was provided with a company van and was specifically instructed that he was not allowed to use the van for personal travel or swap vehicles with other employees without first obtaining permission. He was also told that Mears had a strict zero tolerance approach regarding the consumption of alcohol and the use of company vehicles.

In October 2004, Mr Draper swapped his vehicle with a colleague without permission in order that he could pick up some furniture on his way home. Before returning home after work, he went to a local pub and was found by managers sitting in the borrowed vehicle with the smell of alcohol on his breath. Upon being challenged for his conduct, he became abusive and aggressive. He was told to report to his employers the following day to discuss his behaviour. His conduct was discussed during this initial meeting and also at a second investigatory meeting. It was made clear throughout the process exactly what conduct had led to Mears’ concerns.

He was then invited by letter to attend a disciplinary meeting. Under the Regulations, an employer proposing to dismiss an employee must comply with the statutory disciplinary and dismissal procedure. The first step in this procedure is for the employer to “set out in writing the employee’s alleged conduct or otherwise circumstances which lead him to contemplate dismissing or taking disciplinary action” and invite the employee to a meeting. The letter set out in general terms that the hearing was to consider disciplinary action relating to “using a vehicle for social purposes, conduct which fails to reasonably ensure health & safety of oneself and others, insubordination and/or a breach of the company vehicle regulations and procedures”. He was dismissed as a result of the disciplinary procedure.

Following an unsuccessful appeal, he made complaints to the Employment Tribunal regarding his treatment. The Tribunal dismissed his claim and Mr Draper appealed to the Employment Appeal Tribunal (EAT). He argued at the EAT that the Tribunal had been wrong to conclude that the step 1 letter from Mears was sufficient to meet their obligations under the Regulations. Consequently, he argued that his dismissal should be considered to be automatically unfair.

Decision

Mr Draper’s appeal was dismissed. The EAT considered the approach which had been taken by previous Tribunals. Previous case law stated that all an employer had to do was set out in broad terms the grounds which led him to contemplate dismissing the employee together with an invitation to attend a meeting. The letter was supposed to provide employees with sufficient detail to enable them to defend themselves at the hearing. The EAT confirmed that this does not necessarily have to be provided in writing in the step 1 letter or at the same time. In this case, the EAT was able to consider all the circumstances relating to the investigation and the disciplinary hearing. Consequently, they felt that the letter and the procedure overall did satisfy the requirements of step 1 of the statutory grievance procedure because the employee was well aware of the allegations against him.

Comments

The EAT have taken a commonsense approach with respect to this issue clarifying what needs to be contained with a step 1 letter. However, it will remain sensible for employers to provide as much information as possible so as to avoid the risk of a legal challenge.

Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.