Wednesday, 11 March 2009

Statutory Dismissal Procedure: When is 'action taken'?

Here's a very interesting case on the dearly beloved statutory dismissal procedures (not much longer...)

It is authority for the proposition that employers who announce an intention to dismiss before the step 1 letter and step 2 meeting can recover the situation by sending the letter and holding the meeting afterwards, provided they have not actually dismissed the employee.

In Smith Knight Fay v McCoy, the EAT held that the phrase 'action taken' in the statutory dismissal procedure referred to the act of dismissal, not the decision to dismiss. Thus an employee who was told he was being made redundant, and then given a step 1 letter and invited to a meeting, was not automatically unfairly dismissed.See paras. 31-34 of the judgment (and feel free to comment, below).

3 comments:

F Lockhorn said...

Simply surreal. A triumph of form over substance

Henry Scrope said...

Those who would like a little more on this case may like to look at the summary in last night's emplaw web-updater e-mail. The emplaw summary can be accessed at:

http://www.emplaw.co.uk/webupdater/27/1/9483

James Medhurst said...

Yes - this is form over substance but that is the point. There should not be an overlap between the question of whether or not a dismissal is unfair and whether there has been a breach of procedure. Otherwise, all unfair dismissals will be automatically unfair and there will always be uplift, giving employees more than their loss.