Statutory Dismissal and Grievance Procedures - Unreasonable Delay
by Liam
The Court of Appeal have overuled the EAT in Selvarajan v Wilmot. The case considers whether “unreasonable delay” in dealing with a step under the statutory procedures makes a dismissal automatically unfair where the statutory procedure is nonetheless completed (albeit with unreasonable delay - in Selvarajan the alleged unreasonable delay was 4 months in dealing with an appeal).
Paragraph 12 of Schedule 2 of the Employment Act 2002 requires each step under any of the statutory procedures to be taken “without unreasonable delay”.
If an employer fails to complete a step of the statutory dismissal procedure, the dismissal will be automatically unfair.
If an employer does not comply with the requirement to complete a step in the procedure without unreasonable delay, even though the step is completed with unreasonable delay, does this make the dismissal automatically unfair?
The Court of Appeal held that it does not. Whether there was unreasonable delay was not relevant to the question of whether the statutory procedure was completed. If the procedure was completed, no matter how unreasobly delayed, the dismissal is not automatically unfair.
This leaves employees with a tactical decision to make - if an employer delays unreasonably in complying with a step in the statutory procedure, do they refuse to attend a meeting thus meaning the procedure has not been complied with and rely on the employer’s unreasonable delay as the reason for non completion of the procedure (which would make the dismissal automatically unfair and result in up to 50% extra award) or do they attend the meeting, allow the procedure to be completed and miss out on the uplift but at least know there won’t be a reduction if the delay is found by the Tribunal to be reasonable?
It is important to remember that the above only deals with automatic unfairness. A long delay could still potentially contribute to a dismissal being unfair under the normal fairness test in s. 98(4) ERA 1996.
Similar Posts:
