Reflections on the statutory dismissal procedure….
by Philip
The statutory dismissal procedure has been in force for a couple of years now. It lays down a three step minimum procedure that must be followed for almost all dismissals, with limited exceptions.
Most employers have little difficulty in meeting the requirements of the statutory procedure. Smaller employers find it more difficult, mainly because they are unaware of it. A small employer in dismissing an employee may, normally by accident, follow 2/3rds of the statutory procedure. By not following 3/3rds they have automatically unfairly dismissed the employee under section 98A.
For employment law anoraks ( I hope there are some reading)this is where it gets interesting. Sections 98A to 105 of the Employment Rights Act provide for a number of categories of automatically unfair dismissal. For example it is automatically unfair dismissal to dismiss an employee (or select him for redundancy)on grounds of his or her complaints about health and safety.
If you fail to follow the statutory dismissal procedure the dismissal is automatically unfair under section 98A. As it is automatically unfair a Tribunal has no need to consider whether the employer had a fair reason for dismissal or acted reasonably under section 98 (4). The interesting thing here though is that for all other categories of automatically unfair dismissal a Tribunal has to find a reason for dismissal which is unlawful ie dismissing an employee for working time reasons, or selecting him or her for redundancy for those reasons. Section 98A (the section dealing with statutory dismissal procedure) does not require the Tribunal to consider the reason for dismissal. The dismissal is automatically unfair for failure to follow the statutory dismissal procedure.Full stop.
Arriving at the key point (at last!) as the Tribunal does not have to find a reason for dismissal in cases where the statutory dismissal procedure has not been followed, is the Tribunal allowed to offset a redundancy payment against the basic award? On a strict reading of section 122 (4) the Tribunal cannot offset any redundancy payment against the basic award as there will be no reason for dismissal found.
Am I right or am I guilty of over analysis? Your thoughts please.
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Of course the statutory dismissal procedure does not apply during the first twelve months as the employee cannot bring an unfair dismissal claim save for very limited circumstances.
Sarah said at March 12th, 2008 at 4:32 pm