Veitch Penny LLP - Exeter | Crediton, Devon

Case

Masterfoods v Wilson
Employment Appeal Tribunal - (7 August 2006)

Issues

(1) The statutory Dismissal and Disciplinary Procedure;
(2) Appeals;
(3) Practice and Procedure.

Facts

Mr Wilson had been employed as a Technical Operator by the Respondent, Masterfoods. Mr Wilson was subjected to disciplinary proceedings regarding abuse of the company sick pay procedure. It was alleged that he had taken time off work sick when he was actually fit and able to work, and had fraudulently claimed company sick pay.

The standard disciplinary and dismissal procedure requires employers to go through three steps when bringing disciplinary proceedings against employees. The employer is required to provide a statement of grounds for the action and an invitation to a meeting. The second step is the discussion of the grounds via a meeting and, the third step in the procedure, relates to an appeal.

In this case, Masterfoods had a “sophisticated” disciplinary procedure which went into far more detail than the statutory procedure.

During the course of Mr Wilson’s claim, defects were identified relating to step 3 of the disciplinary procedure relating to his appeal of the decision to dismiss him. He was advised by letter following a disciplinary hearing that he had been dismissed and was given the opportunity to appeal the decision. The letter stated that in making an appeal he would need to set out the grounds of his appeal in writing within 5 working days of the date of their letter.

Mr Wilson wrote to Masterfoods stating that he wanted to appeal the decision to dismiss him and that his grounds for appeal would be sent separately and as soon as possible from his Solicitor. The grounds were subsequently submitted but Masterfoods informed Mr Wilson that his appeal would not be heard because of the delay in presenting the grounds of appeal.

At tribunal, the panel found that the employee had been dismissed in breach of the standard disciplinary and dismissal procedure. Accordingly, Mr Wilson’s dismissal was automatically unfair.

The tribunal noted that the three step procedure does not provide that an appeal must be made in writing or that it should be supported by grounds of appeal or made within a set period of time. The sole requirement upon an employee is to indicate that they wish to appeal. As a result, the company had not been entitled to disregard the initial letter from Mr Wilson indicating his intention.

The consequences of a breach of the statutory procedure is that a dismissal must be found to be automatically unfair. Any compensation awarded may be uplifted by between 10-50%.

The matter was then referred to the Employment Appeal Tribunal (EAT).

Decision

The EAT confirmed that the original Tribunal’s approach was correct.

Comments

In view of the penalty for failure to properly implement the statutory dismissal and disciplinary procedure, employers must be very careful that they do not add any extra requirements in their own procedures which are not found in the statutory three step procedure. Whilst it would be acceptable to request that grounds be included, the employee must not be prevented from appealing if they do not provide those grounds.

It should also be remembered that simply complying with the statutory procedures does not mean that a procedure will be automatically fair.

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.