Employment Law Solicitors: Statutory Disciplinary Procedures   Under the Employment Act 2002 (Dispute Resolution) Regulations 2004, employers must at the very least follow the statutory dismissal and disciplinary procedure (DDP) when dismissing an employee or taking relevant disciplinary action for the procedure to be fair.

It is advisable to follow the standard DDP in all disciplinary and dismissal situations. The standard DDP is a 3 step procedure which is as follows:-

1. Step 1: Letter from the employer to the employee setting out the circumstances which have led them to consider dismissal or disciplinary action. The letter should also invite the employee to a disciplinary meeting and the employee should be provided with sufficient time to prepare for that meeting.

    

2. Step 2: Disciplinary meeting. Employee should be notified of decision post meeting and advised of their right to appeal.

    

3. Step 3: Appeal. Employer should appoint a more senior manager to represent them at the appeal.

Employers, however, do have the option of using the so called ‘modified’ DDP in the following circumstances:-

• The employee was dismissed for gross misconduct without notice.

   

• The employee was dismissed immediately the employer became aware of the gross misconduct.

   

• The tribunal determines that dismissal without notice is justified in the circumstances and that no further investigation into the gross misconduct was required.

The modified DDP is a 2 step procedure which is as follows:- 

1. Step 1: Letter from the employer detailing the alleged gross misconduct which brought about the dismissal and the reasons why the employer believed the employee to be guilty. The letter should also state that the employee has a right to appeal.

    

2. Step 2: appeal.

Nevertheless, tribunals have usually been loath to find that the modified DDP is ever justified even in the most extreme cases of gross misconduct. Given this, employers should, as stated above, never use the modified DDP. The standard DDP should therefore be used in all cases.

Should an employer fail to follow the DDP (note: DDP does not apply to collective redundancies of 20 employees or more) and proceed to dismiss the employee, the dismissal would amount to automatic unfair dismissal and the employee would be entitled to claim an up to 50% uplift in compensation on what they would otherwise expect to receive at tribunal. When gauging procedural fairness, the following applies:-

1. DDP not followed = automatic unfair dismissal

    

2. DDP followed but employer failed to follow own disciplinary procedure or other pertinent procedure = dismissal not unfair should the employee have ultimate been dismissed had the other procedure been followed.

    

3. Reason for dismissal unfair = unfair dismissal.

    

4. DDP does not apply (e.g. collective redundancies involving more than 20 employees) and no fair procedure followed = dismissal not unfair should the employee have been dismissed had a fair procedure been followed.