Selvarajan v Wilmot & Ors

The Court of Appeal held that, for the purposes of section 98A of the Employment Rights Act 1996, the statutory phrase "the procedure has not been completed" refers to whether the prescribed procedural steps have been finished in the ordinary meaning of "completed", and is distinct from whether those steps were carried out in conformity with the general requirements (such as timeliness) in Part 3 of Schedule 2 to the Employment Act 2002 and the 2004 Regulations. The Dismissal and Disciplinary Procedure (Standard Procedure) at issue had three steps (notice and invitation, meeting, appeal); all three steps had been taken and the procedure was therefore completed.

Accordingly, failure by an employer to comply with a general requirement (for example to take a step without unreasonable delay) does not of itself mean the statutory procedure was not completed for the purposes of section 98A(1)(b). The regulations (in particular Regulation 2 and Regulation 12 of the 2004 Regulations) do not alter that construction and operate on the premise that a procedure has not been completed before attributing non-completion to a party.

On the facts the tribunal’s findings that the employer had a reasonable belief in misconduct following a reasonable investigation supported dismissal within the band of reasonable responses, and the claim for disability discrimination failed on the tribunal’s findings. The employer’s appeal on the automatic unfair dismissal point was allowed; the employees’ appeals on ordinary unfair dismissal, wrongful dismissal and disability discrimination were dismissed.

Background and parties: The appellant employer dismissed three receptionist employees for alleged misconduct arising from unauthorised overtime claims following internal investigation, suspension and a disciplinary hearing. The employees brought multiple claims in the employment tribunal including ordinary and automatic unfair dismissal and, in one case, disability discrimination.

Procedural history: The employment tribunal dismissed the employees’ claims and sent its judgment on 23 May 2006. The Employment Appeal Tribunal allowed the employees’ appeal only on the issue of automatic unfair dismissal (12 October 2007) and remitted that issue to the tribunal for rehearing. The employer obtained permission to appeal that EAT decision to the Court of Appeal and the employees obtained permission to appeal on the remainder of the EAT’s dismissal of their claims.

Nature of the claim / relief sought: The employees sought declarations and remedies for ordinary unfair dismissal under sections 94–98 of the Employment Rights Act 1996, and alternatively for automatic unfair dismissal under section 98A arising from alleged procedural non-compliance. One employee sought a remedy for disability discrimination under the Disability Discrimination Act 1995.

Issues framed:

• Whether the statutory Dismissal and Disciplinary Procedure (Standard Procedure) had been "completed" within the meaning of section 98A(1)(b) when all three procedural steps had occurred despite an asserted unreasonable delay in carrying out Step 3 (appeal).
• Whether any non-completion was wholly or mainly attributable to the employer’s failure to comply with the general requirements (for example the timetabling requirement in Part 3 of Schedule 2 to the Employment Act 2002 and the relevant 2004 Regulations).
• Subsidiary factual issues: whether dismissal for misconduct was within the band of reasonable responses and whether there was unlawful disability discrimination or a breach of natural justice.

Court’s reasoning and conclusions: The Court of Appeal examined section 98A ERA 1996, section 31 and Schedule 2 to the Employment Act 2002, and the Employment Act 2002 (Dispute Resolution) Regulations 2004 (Regulation 2(1) and Regulation 12). It concluded that the statutory language draws a clear distinction between an applicable procedure having been completed and non-compliance with the requirements of a procedure. "Completed" should be given its ordinary meaning and does not become conditional on compliance with general requirements. Regulation 12 operates on the premise that the procedure has not been completed and then attributes non-completion to the party failing to comply; it does not redefine completion. The court therefore allowed the employer’s appeal on the automatic unfair dismissal point, held that the DDP had been completed, and dismissed the employees’ remaining appeals. The tribunal’s factual findings that the employer conducted a reasonable investigation, had a reasonable belief in misconduct and that dismissal fell within the band of reasonable responses were upheld; the disability discrimination claim failed on those facts.

Appeal allowed on the automatic unfair dismissal point. The Court of Appeal held that "completion" of the statutory dismissal procedure in section 98A(1)(b) is to be assessed in its ordinary sense (whether the prescribed steps have been finished) and is distinct from compliance with general procedural requirements (such as timeliness). Because all three steps of the Standard Procedure had been taken, the procedure was completed and the dismissal was not automatically unfair. The employees’ appeals on ordinary unfair dismissal, wrongful dismissal and disability discrimination were dismissed on the tribunal’s findings.

Employment Tribunal decision delivered 23 May 2006 dismissing the employees' claims. Employment Appeal Tribunal allowed the automatic unfair dismissal appeal and remitted that issue to the Employment Tribunal (12 October 2007). Permission to appeal to the Court of Appeal was granted to the employer (12 December 2007) and permission for the employees to appeal other points was granted (14 January 2008). The Court of Appeal handed down judgment on 23 July 2008 ([2008] EWCA Civ 862).