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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Patel v Leicester City Council [2006] UKEAT 0368_06_2012 (20 December 2006) URL: http://www.bailii.org/uk/cases/UKEAT/2006/0368_06_2012.html Cite as: [2006] UKEAT 368_6_2012, [2006] UKEAT 0368_06_2012 |
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At the Tribunal | |
On 21 November 2006 | |
Before
THE HONOURABLE MR JUSTICE KEITH
MRS M McARTHUR BA FCIPD
MR D WELCH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
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
The facts
"… 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.
"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."
The Employment Tribunal's conclusions
The relevant statutory provisions
"(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".
The application of the statutory dismissal and disciplinary procedures
• 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.
Step 1: the letter
• 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.
Step 2: the meeting
(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.
Step 3: the appeal
Conclusion