Selvarajan v Wilmot & Ors

For automatic unfair dismissal, completion of a statutory dismissal procedure means completion of its prescribed steps. It is not conditional on compliance with general requirements such as taking each step without unreasonable delay. Non-compliance does not itself establish non-completion.

Regulation 12 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 applies where the procedure has not been completed. It does not convert a completed procedure into an incomplete one. In ordinary unfair dismissal claims, the tribunal assesses the employer’s belief, reasonable grounds, investigation and response. It does not determine the employee’s guilt, and a later admission is not material to the employer’s reason at dismissal.

Three receptionists were dismissed for misconduct after an investigation, disciplinary hearings and internal appeals. The Employment Tribunal rejected claims for ordinary and automatic unfair dismissal, wrongful dismissal and, in one case, disability discrimination.

The Employment Appeal Tribunal allowed the employees’ appeal on automatic unfair dismissal, holding that the statutory procedure had not been completed because the appeal had been delayed, and remitted that issue under UKEAT/0427/06/RN. It dismissed the remaining appeals. The employer appealed on automatic unfair dismissal, while the employees appealed on the remaining issues. The central question was whether completion under section 98A of the Employment Rights Act 1996 depended on compliance with the general requirements in Schedule 2 to the Employment Act 2002.

1. Disposition. The employer’s appeal was allowed on the automatic unfair dismissal issue. The employees’ appeals concerning ordinary unfair dismissal, wrongful dismissal and disability discrimination were dismissed.
2. Automatic unfair dismissal. Mummery LJ held that section 98A of the Employment Rights Act 1996 distinguishes between the applicable procedure, completion of that procedure and compliance with its requirements. The question of completion must be addressed before responsibility for non-completion is considered. Completion is not conditional on compliance with general requirements such as the timetable requirement in Part 3 of Schedule 2 to the Employment Act 2002. All prescribed steps may therefore be completed despite unreasonable delay.
3. The Employment Act 2002 (Dispute Resolution) Regulations 2004 did not alter that conclusion. Regulation 2 includes non-commencement within non-completion. Regulation 12 attributes non-completion to the party failing to comply with a procedural requirement, but assumes that the procedure has not been completed. It had no application once all three stages of the Standard Procedure had occurred. Wilson LJ and Stanley Burnton LJ agreed. Stanley Burnton LJ expressly stated that the line of EAT authority reaching the contrary conclusion was being overruled, including Khan v Home Office, Patel v Leicester City Council, Sovereign Business Integration PLC v Trybus and Yorkshire Housing Ltd v Swanson.
4. Ordinary unfair and wrongful dismissal. The employer’s later admission in evidence that overtime had been paid was irrelevant to the reason for dismissal. The tribunal was concerned with the employer’s belief at the time, the grounds for that belief, the investigation and whether dismissal fell within the range of reasonable responses. It was not required to determine whether the employees were actually guilty of misconduct. The employees had received the investigation results, had representation and an opportunity to obtain further information or rebut the allegations. The Employment Tribunal was therefore entitled to reject the natural justice complaint.
5. Disability discrimination. The tribunal found that Ms Wilmot was dismissed for conduct, not disability, and that adjustments enabled her to perform her duties without substantial disadvantage. The Court of Appeal identified no error of law in those conclusions.

• Court of Appeal (Civil Division) allowed the employer’s appeal on automatic unfair dismissal and dismissed the employees’ appeals on all remaining grounds.
• Employment Appeal Tribunal, under UKEAT/0427/06/RN, allowed the employees’ appeal on automatic unfair dismissal and remitted that issue to the Employment Tribunal, but dismissed their appeals on ordinary unfair dismissal, wrongful dismissal and disability discrimination.
• Employment Tribunal rejected the employees’ claims, including ordinary and automatic unfair dismissal, wrongful dismissal and Ms Wilmot’s disability discrimination claim.