The EAT have issued a decision offering significant guidance on the approach to an employer's duty under step 1 of the statutory dismissal and disciplinary procedures (DDPs), and adopts a similar approach to that of compliance with statutory grievance procedures (Draper v Mears Ltd).
 
Since the Employment Act 2002 came into effect it has been compulsory for an employer to follow the DDPs in dismissing or disciplining an employee. Failure to do so results in the dismissal being automatically unfair, regardless of any fair reason for dismissal, and the tribunal may increase the compensation awarded by 10 to 50%.
 
There are 3 steps in the standard DDP that the employer must comply with and Step 1 requires a statement to be issued to the employee detailing the circumstances leading the employer to contemplate dismissal or disciplinary action against the employee and inviting the employee to a meeting regarding this.
 
In their decision the EAT considered its comments in another recent case (Alexander v Bridgen Enterprises Ltd) where they stated that a Step 1 statement only needed to be a brief statement of the issue in broad terms and the employee only needs to be told that he is at risk of dismissal and the reason for this. In the present case the EAT held the letter did set out the grounds on which dismissal was being considered.  However, they commented that the Tribunal would be entitled to look at the context as a whole in deciding whether a letter provided sufficient information to an employee, taking into account the employee's knowledge of the allegations at the time they received that letter. 
 
The EAT considered that it could be enough for a Step 1 letter to simply refer to "misconduct" if the nature of the misconduct had already been clearly explained to the employee. However, they did not need to make a decision on in this case and this was simply a comment, therefore further decisions on this point will be required before there is any certainty.

Back to Search