Minimum dismissal procedures

Dismissals to which the minimum procedure does not apply

As a general rule, the minimum procedure applies whatever the reason for the dismissal might be. Certain types of dismissal are, however, excluded. These include:

• where all the employees of a particular description or category are being dismissed and offered re-engagement under new contracts, as where new contractual terms are being introduced ( offering new contracts );
• Retirement dismissals, where the employer must instead followed the “duty to consider” procedure (retirement);
• redundancy dismissals where 20 or more employees are being made redundant and the obligation to consult with union or workforce representatives applies ( warning and consultation );
• dismissals of employees involved in industrial action, save in some limited circumstances ( unfair dismissal protection );
• where an employee is dismissed because the employer’s business suddenly ends for an unforeseen reason (such as its premises being destroyed), making it impractical for the employer to maintain a workforce; and
• where an employee is dismissed because the continued employment of the employee would break some duty or restriction imposed by legislation.

Minimum steps required

In summary, the minimum procedure is as follows:

• The employer must write to the employee setting out what conduct, characteristics or other circumstances have led it to consider dismissing the employee, and invite the employee to attend a meeting to discuss the issue.
• The employer must let the employee know what basis it has for the grounds on which it is considering dismissal (by, for example, explaining what evidence it has of his or her misconduct), and give the employee a reasonable opportunity to consider his or her response in advance of the meeting.
• The employee must take all reasonable steps to attend the meeting, which must be held at a reasonable time and location. The employee has the right to be accompanied at the meeting ( the right to be accompanied ).
• The meeting must be conducted in a way that enables both employer and employee to explain their cases.
• After the meeting, the employer must inform the employee of the decision it has reached and tell the employee about his or her right to appeal.
• If the employee tells the employer he or she wishes to appeal, the employer must invite the employee to a further meeting to discuss it, and then inform the employee of its final decision. As far as reasonably practicable, the person who conducts the appeal should be a more senior manager than the person who conducted the initial meeting. The appeal meeting must be conducted in a way that enables both employer and employee to explain their cases.
• If, due to unforeseeable circumstances, it is not possible for the employer, the employee or his or her companion to attend a meeting at the time originally planned, then the employer is under a duty to re-schedule the meeting, but need do so only once.
• Each step of the procedure must be taken without unreasonable delay.

When the procedure need not be followed

In certain limited circumstances, the minimum procedure need not be followed. These include where:

• the employer or employee has reasonable grounds for believing that beginning or pursuing the procedure would be likely to result in a significant threat to a person or to property (beyond the usual stress and anxiety likely to be involved in any disciplinary situation);
• the employer or the employee has been harassed and has reasonable grounds to believe that beginning or pursuing the procedure would result in further harassment;
• it is not practicable for the employer or employee to begin or complete the procedure within a reasonable period because, for example, of illness.

Minimum procedure may not be enough

Following the minimum procedure does not make a dismissal fair. It is still necessary for an employer to act reasonably in all the circumstances, taking into account its size and administrative resources. For this reason, many larger employers have more extensive and thorough procedures that they follow before deciding to dismiss an employee.

The legislation does state that a dismissal will not be viewed as unfair simply because a company has not followed a procedure that is more extensive than the minimum, provided the company can show that it has met the minimum procedural requirements, and that it would have decided to dismiss the employee even if it had followed a more extensive procedure. Nevertheless, it is difficult to predict when an employment tribunal might accept that following a more extensive procedure would still have resulted in a dismissal, and so the safest course remains for an employer to follow the procedural steps recommended in this Guide.