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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Patel v Leicester City Council [2006] UKEAT 0368_06_2011 (20 November 2006) URL: http://www.bailii.org/uk/cases/UKEAT/2006/0368_06_2011.html Cite as: [2006] UKEAT 368_6_2011, [2006] UKEAT 0368_06_2011

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APPEARANCES

 

For the Appellant	Ms Sophie Belgrove (of Counsel) Messrs Abel-Brown Solicitors 18a Orange Street Uppingham Rutland LE15 9SQ
For the Respondent	Mr Jeffrey Jupp (of Counsel) Leicester City Council Legal Services New Walk Centre Welford Place Leicester LE1 6ZG


 


Summary

Unfair dismissal – Automatically unfair reasons

A procedure will only have been completed within the meaning of section 98A(1)(b) of the Employment Rights Act 1996 if it has been completed in accordance with the requirements of Schedule 2 to the Employment Act 2002.


 


THE HONOURABLE MR JUSTICE KEITH

Introduction

1. The Claimant, Laxmi Patel, was dismissed from her employment with the Respondent, Leicester City Council ("the Council"). She brought a claim for unfair dismissal. An Employment Tribunal in Leicester dismissed her claim, and she now appeals against the dismissal of her claim. A number of issues were raised in the Employment Tribunal about the Council's treatment of Mrs Patel, but the appeal now relates only to whether the Employment Tribunal erred in law in concluding that the Council had not failed to comply with the statutory dismissal and disciplinary procedures in the Employment Act 2002 ("the 2002 Act"). The summary of the facts which follows deals only with those facts found by the Employment Tribunal which are relevant to that issue.

The facts

2. Mrs Patel was employed by the Council for many years before her dismissal. For a number of years she worked as a bilingual teaching assistant. But in 2002 that post became redundant, and she sought alternative employment with the Council pursuant to its redeployment scheme. In due course, she was appointed a team leader for the Disabled Children's Social Inclusion Team in the Council's Social Care and Health Department, and that was the post she held until her employment came to an end on 25 May 2005.
3. Mrs Patel's line manager was Christopher Bush. He was the service manager of the Multi-Agency Disabled Children's Project in the Social Care and Health Department. During 2004, he became concerned about the level of Mrs Patel's performance. He therefore decided to invoke the procedure which applies when an employee's capability to perform their work is called into question. The aim of that procedure was stated to be

"… to provide a fair process for reviewing an employee's capability and dealing with any problems identified. The emphasis will not be on punishment but on helping employees to do their jobs to the required standards and keeping them within the organisation. The procedure will, therefore, provide for joint discussions and, wherever possible, jointly agreed decisions about the steps to be taken to reach the required level of performance. Where, however, the required improvement is not forthcoming, redeployment or dismissal may result."

The procedure had a number of stages, and if at the conclusion of stage 1, the Council was not satisfied with the employee's progress, it could proceed to stage 2. It was on 20 September 2004 that Mr Bush wrote to Mrs Patel to inform her that he had decided to invoke stage 1 of the procedure. For the next few months, Mrs Patel's performance was to be monitored and assessed.

4. After a while, a meeting was arranged at which Mrs Patel's performance was to be discussed. That meeting took place on 7 January 2005. Mrs Patel was accompanied by her trade union representative, and Mr Bush had Mrs Kalpana Patel from the Department's human resources section with him. We will henceforth refer to her as Mrs K Patel to distinguish her from the Claimant, who we will continue to call Mrs Patel. It was at this meeting that the possibility of Mrs Patel's redeployment to another post within the Council was first raised.
5. It is here necessary for us to say something about the Council's redeployment scheme. Its redeployment scheme applies in a number of situations, for example where an employee is at risk of redundancy, or where their health makes them unsuited to their current role. It can also be invoked as a sanction under the capability procedure, though an employee whose performance is still being considered under the capability procedure can elect to be considered for redeployment under the redeployment scheme. However, there are two important consequences of such an employee choosing to be considered for redeployment. First, the employee will not be allowed to remain in their current post or to revert back to the capability procedure if there proves not to be a post to which the employee can be redeployed. Secondly, the absence of a post to which the employee can be redeployed will result in the employee being dismissed. Although the Employment Tribunal was provided with the Council's redeployment and redundancy scheme, it was not shown that part of the redeployment scheme which linked it to the capability procedure, and which referred to these two important consequences. Indeed, the two lay members hearing this appeal have not come across a system which required an employee to give up her old job if she wanted to take advantage of the opportunities available for redeployment. But that is what the Employment Tribunal found, and there was no appeal against that finding.
6. We return to the meeting of 7 January 2005. According to a letter wrongly dated 19 January 2004, but intended to be dated 19 January 2005, which Mr Bush subsequently wrote to record what had been discussed, the meeting lasted for over two hours, and covered a wide range of concerns. In short, Mrs Patel was told that her performance had not improved, and it was proposed to proceed to stage 2 of the capability procedure. She was also told that, if she wanted to, she could ask to be redeployed under the Council's redeployment scheme. In that connection, the Employment Tribunal found that it had been made clear to her at that meeting that if she chose to go down that route, the capability procedure would no longer be invoked, and that if there was no post to which she could be redeployed, she could not revert back to the capability procedure and her employment would be terminated. Mrs Patel's case was that the possibility of her seeking redeployment was raised because the Council wanted her to opt for redeployment, and that she "felt that she had no option" but to do so. The Employment Tribunal did not make any findings about that, although it found that at the meeting she requested to be redeployed.
7. The Employment Tribunal also found that the Council wanted Mrs Patel to be sure that that was what she really wanted to do. She was therefore advised to discuss the matter with her trade union representative before making a final decision. That was how matters were left at the end of the meeting. As it was, Mrs Patel decided to press ahead with her request to be redeployed. On 10 January 2005 she wrote to Mr Bush saying that she had "opted for redeployment", and requesting that the process start from 28 February 2005 when she was due to return from leave.
8. Since Mrs Patel had opted for redeployment, a meeting to discuss that took place with Mrs K Patel on 13 January 2005. The Employment Tribunal found that Mrs Patel was told at that meeting that even then she could continue with the capability procedure if she wanted to, instead of proceeding with her request for redeployment, but she confirmed her wish to be considered for redeployment. Mrs Patel was to claim that Mrs K Patel had told her at that meeting that the Council's redeployment rate was 100%, but that was denied by Mrs K Patel, and the Employment Tribunal found that Mrs K Patel had not provided Mrs Patel with the reassurance which she had claimed.
9. Later that day, Mrs K Patel wrote to Mrs Patel to confirm what had been said at the meeting. Since the letter has assumed some importance in the determination of the issues which arise on this appeal, we propose to set it out in full. The material parts of it read as follows:

"Under the capability procedure, employees are given the option of redeployment and you have decided to opt for redeployment.

You were advised that once the redeployment process commenced you could not revert to the capability procedure, and that the redeployment process was for a three month period.

It was agreed to implement the redeployment procedure for a period of three months, with effect from 13 January 2005. It was agreed that the period be extended to take into account your leave from 24 January 2005 to 28 February 2005.

This process will allow me to look for alternative employment across the [Council] to match your skills, knowledge and experience. To allow me to assess your suitability for any vacancies, please complete the skill profiles which I gave you during the meeting and return [it] to Lisa Cessford (as I am on leave) prior to your going on leave. If you need any assistance with completion of this, please let me know.

Arrangements have been made for you to receive a copy of the vacancy bulletin each week at your home address. If you have any problems with receiving this, please let me know. You will have the opportunity to bring to my attention any vacancies advertised in the bulletin which you are interested in.

Full discussion with regard to any suitable vacancy will take place with you. If it is felt that the job is suitable, and [if you] have been shortlisted as meeting the essential requirements, an interview will be arranged. Should you be successful, the job would be offered to you initially on a trial period of up to two months. Upon satisfactory completion of your trial period, the appointment would be confirmed. As explained during the meeting if the job is on lower pay, your salary will not be protected and you will receive the due salary for that post.

If, at the end of the three month period, suitable alternative employment has not been found your continuing employment with the Council will be reviewed. I have to remind you, as explained at the meeting, [that] the Department will have no alternative but to terminate your employment in line with the redeployment procedure.

As you are taking five weeks leave your redeployment period has been extended for this period of time. This means that should you fail to obtain suitable alternative employment your employment with the Department will terminate on 18 May 2005."

10. Three comments should be made about that letter. First, Mrs Patel did not subsequently challenge the contents of the letter or suggest that it was inaccurate or misrepresented what had been discussed and agreed at the meeting. Secondly, the skills profile referred to in it was to be completed so that Mrs Patel's "skills, knowledge and experience [could be matched] against the requirements for any vacancy that may arise". Thirdly, the vacancy bulletin was a reference to the bulletin in which all vacant posts were identified. It was open to Mrs Patel to apply for any of them.
11. In the period during which Mrs Patel was being considered for redeployment, she remained in her substantive role as a team leader for the Disabled Children's Social Inclusion Team, though concerns were expressed at the time by her trade union representative about her treatment in that period. As it was, Mrs Patel went on sick leave on 19 April 2005, and did not return to work prior to the ending of her employment on 25 May 2005. However, she and her husband attended a meeting on 5 May 2005 with Mrs K Patel. In view of the importance which that meeting has assumed, it is necessary to put it in its proper context. Mrs Patel's trade union representative had asked for a meeting in view of the way Mrs Patel was being treated at work, but it is plain that the meeting on 5 May was fixed not just to discuss that, but also to discuss some of the issues arising out of the redeployment process. That is apparent from a list of topics prepared by Mrs Patel which she wanted discussed at the meeting. They included her belief that the Council had not done enough to identify suitable alternative posts for her, and a request that the redeployment period be extended for a few weeks to take into account her ill-health since 19 April. So the Employment Tribunal's finding that the meeting was "to discuss the redeployment procedure" was not quite right. It was a meeting requested by Mrs Patel to discuss particular aspects of the redeployment process and her grievance about the way she was being treated at work.
12. Following that meeting, Mrs K Patel wrote to Mrs Patel. The letter is dated 11 May. Although the letter purported to confirm the main points made at the meeting, it did little more than repeat the points which had been made in the letter of 13 January 2005. It reminded Mrs Patel that once the redeployment process had commenced on 13 January 2005, reverting to the capability procedure had ceased to be an option, and it confirmed that if suitable alternative employment was not found by 18 May 2005, her employment would terminate on that date. But the letter did not cover the particular points about the redeployment process which Mrs Patel had wanted to raise at the meeting.
13. The plan was for a further meeting to take place on 18 May to review what had happened during the redeployment period. In the event, the redeployment period was extended to 25 May to accommodate Mrs Patel's trade union representative who would not be able to attend a meeting on 18 May as she would be on leave. As it turned out, the meeting fixed for 25 May was changed to 24 May, but that was cancelled by Mrs Patel, and the meeting eventually took place on 7 June which was after her employment had come to an end. Unfortunately, Mrs Patel decided to end the meeting prematurely, but in a letter written later that day, Mrs K Patel recorded seven alternative posts for which Mrs Patel had been considered. It referred to the fact that she would be receiving 12 weeks' pay in lieu of notice, and it informed her of her right to appeal.
14. By a letter dated 15 June 2005, Mrs Patel informed the Council of her wish to appeal against her dismissal. Regrettably, her appeal was not heard until 8 December 2005. The Employment Tribunal found that part of the reason for the delay related to the unavailability of the councillors who were to hear the appeal. In the event, the appeal was dismissed.

The Employment Tribunal's conclusions

15. On these primary facts, the Employment Tribunal concluded that Mrs Patel had been dismissed by the Council with effect from 25 May 2005, that the reason for her dismissal had been because she had been unsuccessful in finding another job during the redeployment process, that that reason constituted some other substantial reason of a kind such as to justify her dismissal, and that in the circumstances the Council had acted reasonably in treating that reason as a sufficient reason for dismissing her. This last finding was challenged in the Notice of Appeal filed on Mrs Patel's behalf, but when the Notice of Appeal was considered by Elias P, he took the view that there were no reasonable grounds for challenging that finding, and he directed, pursuant to rule 3(7) of the Employment Appeal Tribunal Rules, that no further action be taken on that, or any other, ground of appeal, with the exception of the ground contained in para. 8 of the Notice of Appeal. No dissatisfaction was expressed with the reasons given by Elias P for that view, and the appeal therefore proceeds on the ground contained in para. 8 only. That ground challenges the Employment Tribunal's finding that the Council did not fail to comply with the statutory dismissal procedures in the 2002 Act.

The relevant statutory provisions

16. Since the relevant statutory provisions are relatively new, it is worth setting them out in full. Section 98A of the Employment Rights Act 1996 ("the 1996 Act") provides, so far as is material, as follows:-

"(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if –

(a) one of the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 (dismissal and disciplinary procedures) applies in relation to the dismissal,

(b) the procedure has not been completed, and

(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

(2) Subject to subsection (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

(3) For the purposes of this section, any question as to the application of a procedure set out in Part 1 of Schedule 2 to the Employment Act 2002, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under section 31 of that Act."

Part 1 of Schedule 2 to the 2002 Act relates to dismissal and disciplinary procedures. It consists of two chapters. The relevant chapter for present purposes is chapter 1, which sets out the standard (as opposed to the modified) procedure to be adopted. It identifies three steps which have to be taken. They are as follows:-

"Step 1: statement of grounds for action and invitation to meeting

1. (1) The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.

(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend the meeting to discuss the matter.

Step 2: meeting

2. –(1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.

(2) The meeting must not take place unless –

(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and

(b) the employee has had a reasonable opportunity to consider his response to that information.

(3) The employee must take all reasonable steps to attend the meeting.

(4) After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.

Step 3: appeal

3. – (1) If the employee does wish to appeal, he must inform the employer.

(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.

(3) The employee must take all reasonable steps to attend the meeting.

(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.

(5) After the appeal meeting, the employer must inform the employee of his final decision."

Para. 12 of chapter 2 (which is in Part 3 of Schedule 2) provides that "[e]ach step and action under [this] procedure must be taken without unreasonable delay".

17. The Employment Tribunal found that the written statement of grounds which constituted step 1 of the standard procedure was the letter of 13 January 2005, and that the meeting which constituted step 2 of the standard procedure was the meeting which took place on 7 June 2005. It found that they complied with steps 1 and 2. It acknowledged that there had been delay in the hearing of the appeal, but it was not persuaded that "the delay had [had] the effect of rendering the appeal ineffective and as a consequence to conclude that the [Council] had failed to comply with step 3 of the standard procedure". Each of these findings are attacked in this appeal.
18. One important point should be noted. Those advising Mrs Patel in the Employment Tribunal were not intending to argue that her dismissal had been rendered unfair by the Council's failure to complete the steps set out in the standard procedure. No such allegation appeared in the ET1. The issue was raised by the Employment Tribunal itself. That meant that the Council's advisers had to decide in the course of the hearing which letter they were going to contend constituted step 1 and which meeting they were going to contend constituted step 2. It also meant that Mrs Patel's advisers had to decide in the course of the hearing how to respond to these contentions.

The application of the statutory dismissal and disciplinary procedures

19. When the Employment Tribunal raised the issue of the statutory dismissal and disciplinary procedures, the Council took the point that the procedures did not apply to this case. That was because the provisions bringing them into effect did not come into force until 1 October 2004, and the capability procedure had been invoked by Mr Bush before then, namely on 20 September 2004. The argument runs like this:-

•    The relevant regulations made under section 31 of the 2002 Act (referred to in section 98A(3) of the 1996 Act) are the Employment Act 2000 (Dispute Resolution) Regulations 2004 (SI 2004/752) ("the Regulations").

•    The Regulations came into force on 1 October 2004: see reg. 1.

•    Reg. 3(1) of the Regulations provides that the standard dismissal and disciplinary procedure (in chapter 1 of Part 1 of Schedule 2 to the 2002 Act) applies "when an employer contemplates dismissing or taking relevant disciplinary action against an employee".

•    Reg. 2(1) of the Regulations defines "relevant disciplinary action" as "action, short of dismissal, which the employer asserts to be based wholly or mainly on the employee's conduct or capability, other than suspension on full pay or the issue of warnings (whether oral or written)".

•    Reg. 18(a) of the Regulations provides that the Regulations do not apply where the employer first contemplates dismissing or taking relevant disciplinary action against the employee before the Regulations came into force.

•    By invoking the capability procedure, the Council was contemplating relevant disciplinary action against Mrs Patel, but since the Council had first contemplated that before 1 October 2004, the standard dismissal and disciplinary procedure did not apply.

20. We do not think that the Employment Tribunal reached a conclusion on this issue. That was because it concluded that the Council had complied with the requirements of the standard dismissal and disciplinary procedure. Admittedly, it referred, in para. 30.1 of its reasons, to Mrs Patel's dismissal having been "the culmination" of the capability procedure invoked by the Council before the statutory requirements had come into effect. But it said in terms that its conclusion that this aspect of Mrs Patel's case failed was "either because" the statutory requirements had not come into force or because the statutory requirements had been complied with. Since it explained at length why in its view the statutory requirements had been complied with, it did not need to express a view as to whether the requirements had or had not come into force.
21. We propose to address the argument that the statutory requirements had not come into force. Its success depends on the proposition that the invocation of the capability procedure and the redeployment scheme represented a seamless and unified process, so that when the Council was contemplating dismissing Mrs Patel in the event of her not being redeployed to an alternative post, that was part and parcel of the process by which the Council had been monitoring her performance under the capability procedure. This is where the argument breaks down. It is true that the capability procedure provides for the procedure to be brought to an end if the employee chooses to be considered for redeployment, but it does not follow, as Mr Jeffrey Jupp for the Council claimed, that the redeployment scheme had been "incorporated" into the capability procedure. They are very different animals – especially when one remembers that taking advantage of the former meant giving up one's right to continue to be appraised under the latter. When the Council began to contemplate dismissing Mrs Patel if an alternative post could not be found for her in the redeployment process, the Council had ceased contemplating taking action based on her capability. In our judgment, the two functions were not part of the same process at all.

Step 1: the letter

22. The Employment Tribunal's finding that the letter of 13 January 2005 constituted the step 1 letter and complied with the requirements of step 1 is challenged on two fronts by Ms Sophie Belgrove for Mrs Patel. First, she argued that the letter was too early for it to be treated as constituting a step 1 letter. The possibility of Mrs Patel being dismissed was a long way off. It would only happen if an alternative post could not be found for her in the redeployment process. Her dismissal was so remote a possibility that, to use the language of para. 1(1) of step 1, the Council could not at that stage have been contemplating dismissing her. We do not agree. Once Mrs Patel had opted out of the capability procedure and into the redeployment scheme, her dismissal was inevitable if an alternative post was not found for her. Each case depends on its own facts, and we are very far from saying that a step 1 letter is required even when an employer does not actively have dismissal in mind. Indeed, it is difficult to shoehorn the facts of this case comfortably into the language of step 1. But the fact that Mrs Patel would be dismissed in the event that she could not be redeployed to another post meant that circumstances existed at that stage which could have led to her dismissal. That was a sufficient basis on which the Employment Tribunal could find the existence of circumstances which led, in the sense of could have led, the Council to contemplate dismissing her.
23. Ms Belgrove's second argument was the antithesis of the first. If the letter of 13 January 2005 was not too early for it to be treated as constituting a step 1 letter, it was too late for it to be treated as one. If Mrs Patel was going to be dismissed without an opportunity to remain in her current post or to revert back to the capability procedure in the event of an alternative post not being found for her, she needed to have written confirmation that that would be the consequence of her choosing the redeployment option before she made her final decision. That was especially so if she was under the impression – albeit wrongly in the light of the Employment Tribunal's findings – that another post would be found for her in the redeployment process. Since she made her final decision to go down the redeployment route at the meeting of 13 January 2005, the letter of 13 January 2005 could not have constituted the step 1 letter since it was written to her after that meeting.
24. This argument was not advanced to the Employment Tribunal, but since it does not depend on further evidence, we do not think that that should prevent Ms Belgrove from taking the point on appeal. Having said that, the point has little merit since Mrs Patel knew only too well on 13 January 2005 when she made her final decision what the consequences would be:-

•    She was told at the meeting on 7 January 2005 that if she opted for redeployment, she would not be able to return to her current post if redeployment was unsuccessful but would instead be dismissed.

•    She nevertheless requested at that meeting to be redeployed.

•    The Council wanted her to be sure that she was doing the right thing, and advised her to speak to her trade union representative before making a final decision.

•    She wrote to Mr Bush on 10 January 2005 confirming her decision.

•    At the meeting of 13 January 2005, she was told in effect that it was not too late to change her mind, but she still chose to opt for redeployment.

In the circumstances, it would be surprising if her dismissal had to be treated as unfair simply because what she had been told had not yet been reduced to writing.

25. As it is, the short answer to the point is that until Mrs Patel made her final decision to opt for redeployment, there were no circumstances which could have led the Council to contemplate dismissing her. Those circumstances could only have existed once she opted for redeployment. Such circumstances as existed before she opted for redeployment related to the outcome of the capability procedure, and that procedure was immune from the statutory dismissal and disciplinary procedures because it had commenced before the statutory procedures came into force. Since the circumstances which could have led the Council to contemplate dismissing Mrs Patel could not have arisen until she had opted for redeployment, a letter sent to her before she had finally made that decision could not have constituted the step 1 letter. That does not mean that Mrs Patel would not have had the protection of the law if the consequences of opting for redeployment had not been spelt out to her. She would then have had a strong case for saying that her dismissal would have been unfair under section 98 of the 1996 Act rather than section 98A if she opted for redeployment without having been warned what the consequences of that decision might be.

Step 2: the meeting

26. The Employment Tribunal's finding that the meeting of 7 June 2005 constituted the step 2 meeting cannot stand. Mr Jupp conceded as much. If a meeting is to comply with the requirements of step 2, it has to take place before the dismissal takes effect: see para. 2(1) of step 2. The meeting of 7 June 2005 took place after Mrs Patel's dismissal took effect on 25 May 2005. But that does not mean that a meeting complying with the requirements of step 2 did not take place. The Council's case is that the meeting on 5 May 2005 was such a meeting. The Employment Tribunal noted in para. 2 of its reasons that that was the Council's case, but it does not appear to have addressed that contention.
27. If the meeting on 5 May 2005 was to comply with the requirements of step 2:-

(i) it had to have been a meeting to which Mrs Patel had been "invited",

(ii) she had to have been informed prior to the meeting of the circumstances which had led the Council to contemplate her dismissal,

(iii) she had to have had a reasonable opportunity to consider her response to those circumstances, and

(iv) her attendance at the meeting had to have been to discuss those circumstances.

Having said that, we remind ourselves that in Shergold v Fielding Medical Centre [2006] ICR 304, the Employment Appeal Tribunal (Burton P presiding) said at [27] that the requirements of the statutory procedures should not be construed with "undue technicality and over-sophistication". We approach the question whether the meeting of 5 May 2005 satisfied those requirements with that very much in mind.

28. In our opinion, the meeting on 5 May 2005 satisfied those requirements. As for (i), it is true that the meeting had been requested by Mrs Patel, but the fact that she initiated the meeting did not mean that she was not invited to it. She could be said to have been invited to it when Mrs K Patel agreed to Mrs Patel's request for a meeting. As for (ii), Mrs Patel had been informed that she would be dismissed if an alternative post could not be found for her, and since she wanted to raise her concern that the Council had not done enough to identify suitable alternative posts for her, she must have been told what posts she had been considered for and why she had been regarded as unsuitable for them. As for (iii), since Mrs Patel wanted to discuss how the quest for an alternative post for her was going, she must have got some information about that well before the meeting of 5 May. And as for (iv), it is true that the meeting was requested so that Mrs Patel's grievance at how she was being treated at work could be discussed. But reg. 2(2) of the Regulations provides that in determining whether a meeting fulfils the requirements of step 2, it is irrelevant whether the meeting deals with other matters. The fact is that Mrs Patel wanted to discuss as well particular aspects of the redeployment process – not only her belief that the Council could do more to find a suitable alternative post for her, but also her request that the redeployment period be extended to take into account her ill-health since 19 April. The fact that these topics were on the agenda for the meeting meant that Mrs Patel's attendance at the meeting was to discuss these topics, even if other topics were to be discussed as well.

Step 3: the appeal

29. Mrs Patel's case was that the Council had failed to comply with the requirement in para. 12 of Schedule 2 of the 2002 Act that the appeal, being one of the steps set out in the Schedule, had had to take place "without unreasonable delay". Although the Employment Tribunal acknowledged that there had been delay, it did not say whether in its view the delay had been unreasonable. The delay – amounting to almost six months – was unquestionably inordinate, but whether it was unreasonable in the circumstances depended on a variety of factors, such as whether it needed to be heard by particular councillors (for example, those who were members of particular committees), and what the reasons for their unavailability until December 2005 were. We do not know what the evidence, if any, on these issues was, and it is not possible for us to say whether the delay, though undoubtedly inordinate, was unreasonable in the particular circumstances of the case.
30. It is true that the Employment Tribunal found that the delay had not made the appeal ineffective. By that, we assume the Employment Tribunal meant that the outcome of the appeal would have been just the same had it been heard earlier. But that does not of itself mean that step 3 was complied with. It simply means that Mrs Patel would not be entitled to a compensatory award for her dismissal being regarded as unfair by virtue of section 98A of the 1996 Act. Ms Belgrove accepted – and Mr Jupp agreed – that in those circumstances Mrs Patel would have been entitled only to a basic award, which the parties have agreed, subject to liability, as amounting to £4,550.00.
31. But for one particular point taken on behalf of the Council, we would have had little alternative but to remit the case back to the Employment Tribunal for it to consider whether the delay in holding the appeal was unreasonable. But it is said that that course is unnecessary because section 98A(1)(b) of the 1996 Act merely requires the relevant procedure to have been "completed". The effect of that, so it is said, is that provided that the appeal was heard and determined, the procedure set out in step 3 was completed – even if it had been completed following unreasonable delay – with the result that one of the conditions which has to be present before the dismissal was to be regarded as unfair had not been fulfilled.
32. We cannot go along with this argument. A procedure will only have been completed if it has been completed in accordance with the requirements of Schedule 2 to the 2002 Act. One of those requirements is that the steps required to be taken be taken without unreasonable delay. If a step is not taken without unreasonable delay, the procedure will not have been completed in accordance with the requirements of Schedule 2. If the position was otherwise, there would be no sanction for employers who unreasonably delay completing any of the steps set out in the statutory procedures.
33. Mr Jupp argued that if the Council's argument was not successful, it would be a charter for unscrupulous employers and employees to opt out of the appellate process. If there has been unreasonable delay, an employee will be tempted to abandon his appeal because he knows that he will get a finding of unfair dismissal under section 98A. Equally an employer may not bother to proceed with holding an appeal, because it knows that there will likewise be a finding of unfair dismissal. We think that these concerns are far more theoretical than real. Employees lodge internal appeals in order to get reinstated. They are unlikely to give up that chance simply to have the certainty of a basic award. And the notion that employers would be tempted not to allow an employee to pursue a delayed appeal is fanciful in the extreme.

Conclusion

34. For these reasons, we have concluded that this case must be remitted to the same Employment Tribunal to consider whether the delay in holding the appeal was unreasonable. It will be for the Employment Tribunal to decide whether the parties should be permitted to call further evidence on that issue. If it finds that the delay was unreasonable, and that the delay was wholly or mainly attributable to failings on the part of the Council, it will, no doubt, find that Mrs Patel's dismissal has to be regarded as unfair pursuant to section 98A of the 1996 Act, and award her a basic award in the amount which has been agreed. All the other grounds of appeal are dismissed.