Veitch Penny LLP - Exeter | Crediton, Devon

Case

Silman v ICTS (UK) Limited
Employment Appeal Tribunal - 06 March 2006

Issues

(1) Unfair dismissal
(2) Statutory disciplinary procedure
(3) Investigations

Facts

Mr Silman had been employed by the company as a security officer. Concerns were raised when the company could not contact Mr Silman for two days. The company suspended Mr Silman and invited him by letter to attend a disciplinary meeting. The purpose of the meeting was to discuss allegations of unauthorised absence and falsification of company records. It was alleged that Mr Silman had falsely completed a log book in which he had entered his times of arrival and departure. The company had four statements from other security officers which were submitted to Mr Silman. Mr Silman maintained that he had been in his car in a car park doing paperwork.

A second meeting was held to consider what Mr Silman had been doing whilst in his car. At the end of the disciplinary procedure, Mr Silman was dismissed for misuse of company time.

Silman made a claim of unfair dismissal to the Employment Tribunal. At first instance, the Tribunal found that there had been no unfair dismissal and consequently Mr Silman appealed to the Employment Appeal Tribunal (EAT).

Decision

Mr Silman argued that his dismissal was automatically unfair under Section 98A of the Employment Rights Act 1996 because the company had not complied with the requirements of the statutory dismissal procedure. He argued that his dismissal had been for misuse of company time and that this complaint had not been detailed in the Step 1 letter required for the purposes of the statutory dismissal procedure.

The EAT considered the case and acknowledged that whilst an employer could not dismiss for a reason for which the employee had never been fairly alerted, shifts in focus of the case could not lead to an obligation upon the employer to recommence the dismissal procedure on each occasion.

Comments

It was the fairness of the procedure overall which would be considered. The purpose of the disciplinary procedure was to ensure that there was a proper and fair opportunity for the parties to address the disciplinary concerns and any other issues that may lead to the employee's dismissal. The EAT acknowledged that often in the course of a disciplinary procedure, the evidence would identify a variation of the original misconduct which lead to the procedure being initiated in the first place. There may be cases where the employer became aware of a quite different act of misconduct that would, in the interests of fairness, be better dealt with by a fresh procedure. However in this case, there is little difference between the original complaint and the reason for the dismissal. These were both related to the fact that no work was being done for the company. The employee was well aware of the reasons why the disciplinary procedure had been initiated and no unfairness had arisen. It should not be forgotten that if the statutory procedure is not used, then the Employment Tribunal must uplift any award of financial compensation on to the employer by between 10 and 50%.

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.