Veitch Penny LLP - Exeter | Crediton, Devon

Case

Zimmer Limited v Brezan
Employment Appeal Tribunal – 24th October 2008

Issues

(1) Statutory Dismissal Procedure
(2) Gross misconduct
(3) “Step 1” letter

Facts

Mr Brezan was employed by Zimmer Limited as a Regional Sales Manager, who worked covering most of the south of England. As his job required him to travel some distance, he was allowed to use his own car for business purposes and to claim for any mileage used and other relevant expenses, which he did.

Following a promotion, which meant he would be spending more time in the office, he raised concerns over the loss of his entitlements for mileage, as this covered him travelling to and from his place of work.

As a result of this, Zimmer Limited’s HR consultant looked at recent expenses claim made by Mr Brezan. Upon inspection, the HR consultant found that Mr Brezan’s expenses were higher than those claimed by others in similar job roles, but in different areas of the country.

The HR consultant sent an email to Mr Brezan requesting for a meeting to take place and sending a copy of Zimmer Limited’s disciplinary policy, which stated:

"In cases of (1) a one-off act of gross misconduct, seriously poor behaviour or seriously poor attendance or (2) a failure to improve conduct, behaviour, attitude, performance or attendance following a final written warning within a reasonable time dismissal with or without notice or other alternative sanctions [such as demotion or suspension without pay] will be made."

After further meetings Mr Brezan was dismissed on grounds of misconduct.

At the Employment Tribunal, the tribunal found that Mr Brezan had been automatically unfairly dismissed because when the employer decided to dismiss, Mr Brezan was not aware that he was at risk of dismissal.

The employer appealed to the Employment Appeal Tribunal (EAT) for re-consideration.

Decision

The Employment Appeal Tribunal held that the decision made by the Employment Tribunal, that there had been an automatically unfair dismissal was correct and that the appeal would be dismissed.

The EAT first had to look at whether the ET was correct in concluding that that dismissal was automatically unfair, due to the failure to comply with step 1 of the statutory Standard Dismissal Procedure.

The EAT looked at section 98(A)(1) of the 1996 Act which sets out the criteria for an unfair dismissal:

"98A(1) An employee who is dismissed shall be regarded for the purposes of this Part as
unfairly dismissed if-
(a) one of the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 (dismissal and disciplinary procedures) applies in relation to the dismissal,
(b) the procedure has not been completed, and
(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements."

They then looked to see whether in fact Step 1 had been complied with:

"Step 1: statement of grounds for action and invitation to meeting:
(1) The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.
(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter."

Comments

As no mention was made in the correspondence to the possibility of disciplinary action being taken or any risk of Mr Brezan being dismissed, the appeal was rejected and the decision given in the ET was upheld. Despite there being no specific wording in the statutory dismissal procedure setting out this requirement, the EAT found that an employee should be made aware of what they may face at a disciplinary hearing and the statutory procedure should be interpreted this way.


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.