Unreasonable delay in procedures means automatically unfair dismissal
In Selvarajan v Wilmot and ors the Court of Appeal has held that non-compliance with a general procedural requirement of the statutory dismissal and disciplinary procedures (DDP), that each step and action b taken without unreasonable delay, does not equate to non-completion of the procedure. In so holding, the Court of Appeal overturns a line of EAT authority to the contrary.
No readers – you are not ‘seeing $things’. In last month’s newsletter we reported the EAT’s decision in Yorkshire Housing Ltd v Swanson that an unreasonable delay in complying with any step of the standard dismissal and disciplinary procedure (SDDP) is to be regarded as non-completion of the SDDP and must lead to a finding of automatically unfair dismissal.
In this case, the employer completed all three steps of the SDDP, but there was a 5 month delay between the dismissal and the appeal. The employee claimed this was an unreasonable delay. The tribunal disagreed, but the EAT, following a long line of EAT case law – most recently in Yorkshire Housing Ltd v Swanson – concluded that the alleged failure to deal with the appeal in a reasonable time was a failure to complete the SDDP. However, the Court of Appeal ruled that the tribunal had not erred in its decision. The employer had completed all the three steps required within the SDDP. A failure to comply with one of the general procedural requirements accompanying the SDDP – in this case that each step and action be taken without unreasonable delay – is not a failure to complete the SDDP.
The CA’s decision in this case is hard to comprehend, given the rationale for the statutory scheme. If the CA’s ruling is correct, then why bother having the general requirements at all?, since it appears there are no sanctions available for a failure to observe them, either by the employer or the employee. And surely logic dictates that if you have failed to meet a ‘requirement’ of a scheme, you have failed to complete it properly.
In any event, I n practical terms, the CA’s ruling only applies to the statutory procedure. It is still open to a tribunal to find that the procedure overall was unfair under the general test of fairness in S.98(4) of the Employment Rights Act 1996 where there was an unreasonable delay in proceedings.
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