Cock-Up on the Admin Front : All is Not Lost

Readers will be familiar with the Statutory Dismissal and Disciplinary Procedures (DDP), the cumbersome, civil-service generated amendments to employment law intended to “simplify” dismissal and Tribunal procedures which, through the law of unintended consequences, have complicated matters so much that even HMG is now consulting on their withdrawal. Although they no doubt seemed fine in a DTI committee, they have proved unwieldy, unpopular, and much attacked by lawyers and the Judiciary – never  was the aphorism of a rhino being a committee designed gazelle more apposite-and now the Court of Appeal takes the opportunity to wade in. Can they be long for this world?

In Selvarajan –v-Wilmot the Court of Appeal took the opportunity to state that non-compliance with the procedures of the DDP does not equate with non-compliance of the entire procedure – a fine piece of judicial sophistry and an example of how highly the procedures are thought of by the Judiciary.

Wilmot was a receptionist in a GP’s surgery. She was suspended and disciplined over allegations of falsifying overtime claims. Following an investigation and disciplinary procedure she was dismissed and her appeal denied. As a result Wilmot lodged various claims at the Employment Tribunal including one for automatically unfair dismissal, as prescribed in the (DDP) regulations, for failure to follow correct procedure in that the appeal procedure had taken an unreasonably long time to complete. The Employment Tribunal rejected this claim and Wilmot appealed to the Employment Appeal Tribunal (EAT).

The EAT followed a long line of its own case law in concluding that the delay was a failure to complete the procedure. The case was remitted back to the Tribunal to see whether that delay was unreasonable, as well as being a breach of the rules, and if so that the dismissal was automatically unfair. Before that could occur, Selvarajan appealed to the Court of Appeal. 

Under Lord Justice Mummery (ex-EAT) the CA reversed the EAT’s division and declared the Tribunal had made the right decision. In their view, the regulations required three things for automatically unfair dismissal : that the DPP  regulations apply; that the Dpp was not completed and, that such non-completion was due to the employer’s failure to comply with the regulatory requirements. However, in the view of the Court of Appeal if the procedure has been completed, the question of non-compliance with the general requirements of the procedure does not even arise. Completion of the procedure is given its “ordinary meaning” and is not conditional upon compliance with the detailed requirements of the procedure. Thus has the Appeal Court overridden the EAT, thwarted the thrust of the original legislation and cast a lifeline to employers everywhere who have not, for whatever reason, been unable to follow exactly the minutiae of rules thrown up by the legislation. The slightest fault can now not be used to justify a claim of automatically unfair dismissal, with all that entails.