Section 98A(1) of the Employment Act 1996 means that, where one of the statutory dismissal and disciplinary procedures applies to a dismissal, and the employer fails to follow it, the dismissal will be unfair. ((Provided that the employee is eligible to claim unfair dismissal to begin with))
S98A, however, only applies to the statutory procedures laid out in the Employment Act 2002. A common confusion is to think that it applies to any statutory rule relating to a dismissal procedure. For example, the right to be accompanied to a disciplinary proceeding is a statutory right, but it is not part of the Employment Act 2002 procedure. Therefore, a breach of that right will not make a dismissal automatically unfair.
In Aptuit v Kennedy the EAT has provided guidance on two important issues relating to the Statutory Dismissal and Disciplinary Procedure. Firstly, the process by which the employee must be informed of her right to appeal, and, secondly, how the uplift to the award should be calculated.
Right to appeal
The EAT concluded that there was no need for an employee to be informed of her right to appeal in writing, para. 35 & 44. A verbal statement that an appeal was available was sufficient. Further, neither a oral or written statement needed to be in any particular form. All that was necessary was that the right to appeal was communicated in some way.
Lady Justice Smith did not deal with precisely when the communication of the right to appeal must be made. It seems arguable that the requirement could be satisfied if the right to appeal is laid out in a generally available disciplinary procedure; particularly if the employee’s attention is drawn to the procedure at some stage of the process. This argument remains unresolved.
Where the employer has failed to follow the disciplinary procedure the claimant’s award will be increased by 10%, save in exceptional circumstances. The tribunal has a discretion to increase this uplift up to 50%. There has been little guidance from the EAT as to how this is decision is to be made. Aptuit sheds some light on it, but stops well short of providing definitive guidance.
What Aptuit does make clear is that the only relevant factors when making this decision are those relating to the failure to follow the procedure, para.47. The general merits or circumstances of the case are not relevant. Claimants arguing for an uplift, therefore, should focus their submissions on the extent of the failure and the reasons for the failure (preferably showing that there was no good reason for it).
Aptuit v Kennedy