A Step in Time

The Employment Appeal Tribunal has held, in Zimmer v Brezan, that a step 1 dismissal letter must state that the employer is considering dismissal. If it does not, then any resulting dismissal will be automatically unfair.

Mr Brezan was automatically unfairly dismissed because the statutory dismissal and disciplinary procedure was not followed. This was because there had been a failure to comply with step 1 as the invitation to a disciplinary meeting did not mention that there was a potential risk of dismissal as a result of the meeting.

The EAT held that even though the words of the statutory dismissal procedure did not expressly require the employer to state, in writing, that it was contemplating dismissing the employee, it was desirable to interpret the statutory procedure to include such a requirement so that its purpose is achieved.

The EAT took the view that unless the employee is on notice at the first stage that there is a risk of dismissal, the purpose of the step 1 letter in a dismissal case cannot be properly achieved. The employee should be given some idea of what the employer might be considering as a result of the meeting.

The requirement for the current “three step process” where a dismissal procedure has yet to start will be repealed taking effect from 6 April 2009. However, the three step process must be followed through by an employer if they have sent a dismissal letter by 5 April 2009. These transitional provisions are intended to allow the employee recourse if the dismissal process is underway during the changeover in statutory requirements.

From 6 April 2009 new ACAS guidelines will apply.