Employers will be required to follow new statutory Dismissal and Disciplinary Procedures (likely to be referred to as DDP’s). Failure to follow the DDP’s may lead to an automatic finding of unfair dismissal and may increase any compensation payable.

From October, if you are an employer contemplating a dismissal or taking disciplinary action, you must follow a 3 steps procedure to avoid the finding of unfair dismissal. The 3 steps are effectively: (1) provide a statement of allegations (2) conduct a hearing (3) allow an appeal.

In a little more detail, you must set out, in writing, the employee's alleged conduct, capability or other issues which lead you to contemplate taking action against the employee. A copy of that statement must then be sent to the employee (step 1) who must be given the opportunity to attend a meeting (step 2) to discuss the matter.

Except in the case where the disciplinary action includes paid suspension, this meeting must take place before any disciplinary action is taken. The employee will have to take every reasonable step to attend the meeting.

Following the meeting, you must inform the employee of the decision made and notify the employee of his or her right to appeal against the decision if not satisfied. If the employee informs you that he or she wishes to appeal, you must invite the employee to attend a further meeting. Again, the employee must take every reasonable step to attend the meeting, and you must inform the employee of your final decision (step 3).

Simple enough you may think. But there are two forms of DDP. The ‘Standard DDP’ is as described above. The alternative ‘Modified DDP’ consisting of a 2 step procedure has provoked much discussion in consultation stages of this legislation but you should not unnecessarily be confused. The Modified DDP allows for dismissal without any hearing prior to dismissal. It effectively applies only to gross misconduct dismissals where the employer is entitled to dismiss without notice and without enquiring as to the circumstance of the misconduct. Given that the relevant ACAS Code to which Employment Tribunals will refer states that “workers should never be dismissed without first being given the opportunity to put their case” it will generally be wise to assume that the Standard DDP should be observed in any event.

But following the DDP does not mean that a dismissal will be fair. You must still adopt reasonable procedures which will often be more onerous than the minimum requirements of the DDP. Many employers have been caught out by ‘procedural’ mistakes in a dismissal in the past but from October, provided you observe the relevant DDP, there is some good news for you. If any failure is seen to be only procedural in nature and you can demonstrate that you would have reached the same decisions even if you followed the procedure 'to the letter', the dismissal may be upheld as fair.

As an employer, if you have not complied with a relevant DPP due to your own neglect or omission, a dismissed employee with more than one year’s service will automatically be treated as having been unfairly dismissed.

And if an employee is unfairly dismissed and you have failed to follow the relevant DDP, a minimum award of 4 weeks’ pay will be made against you. Going even further, the tribunal must increase an award by between 10% and 50% unless you can show exceptional circumstances applied and it would be inequitable to make such an award.

Similar provisions will allow an employee to also be penalised for failure to follow the DDP’s. However, this is unlikely to have a significant effect on the number of claims being brought employees.

There is a further financial penalty of which you should take immediate note. Whether you employ just 1 or more than 1000 employees, you will be obliged to provide a minimum statement of terms and conditions of employment and to provide certain specific details of the disciplinary and grievance procedures you adopt. There is no small employers exemption. You may be ordered to pay an employee up to four weeks pay if you have failed to provide that information.

The immediate message is that whether an employer or employee, you should take steps to find out more about the new law. It will have impact on other areas of employment law as well, such as discrimination and bullying and prudent employers will review their contracts and procedures carefully.

Disclaimer
Professional advice should always be sought when dealing with legal issues. This article does not constitute legal advice and no responsibility can be taken from actions arising from reading this article.