Breach of Procedure
The existence of a disciplinary procedure in your contract of employment or collective agreement is important for both unfair and wrongful dismissal.
In unfair dismissal proceedings before the Employment Act 2002 comes into force in October 2004, failure to go through either the agreed procedure or to adopt the ‘rules of natural justice’ (giving notice of an allegation, an opportunity for you to present your version of events) may result in the dismissal being unfair. In other words, a potentially fair dismissal can be made unfair if proper and reasonable procedures are not followed. In determining what is a fair and proper procedure, Employment Tribunals will have regard to the Code of Practice on Disciplinary and Grievance Procedures 2000, published by ACAS.
When the Employment Act 2002 does come into force, your dismissal will be automatically unfair if the statutory disciplinary procedure has not been completed because your employer has failed to comply with it. However, if your employer has breached its own more detailed procedure but not the statutory procedure, then your dismissal will not be unfair if your employer can show that you would have been dismissed even if the correct procedure had been followed.
Furthermore, when the Employment Act 2002 comes into force, if the statutory procedure has not been completed because you have failed to comply with its requirements, for example if you have unreasonably failed to attend a disciplinary meeting, then the Employment Tribunal may reduce your award by between 10 and 50 percent. Your award may also be reduced by such an amount if you have failed to exercise your right of appeal against your dismissal.
If you are denied your rights under a contractual procedure (including the statutory procedures once the Employment Act 2002 comes into force) you may seek an injunction in the High Court to prevent your employer acting upon your dismissal or taking other disciplinary action until the procedure has been exhausted. This means you are to be treated as still employed, although perhaps not being required to work, until the full trial of your case for wrongful dismissal. Public funding is available for this type of claim.
In unfair dismissal proceedings before the Employment Act 2002 comes into force in October 2004, failure to go through either the agreed procedure or to adopt the ‘rules of natural justice’ (giving notice of an allegation, an opportunity for you to present your version of events) may result in the dismissal being unfair. In other words, a potentially fair dismissal can be made unfair if proper and reasonable procedures are not followed. In determining what is a fair and proper procedure, Employment Tribunals will have regard to the Code of Practice on Disciplinary and Grievance Procedures 2000, published by ACAS.
When the Employment Act 2002 does come into force, your dismissal will be automatically unfair if the statutory disciplinary procedure has not been completed because your employer has failed to comply with it. However, if your employer has breached its own more detailed procedure but not the statutory procedure, then your dismissal will not be unfair if your employer can show that you would have been dismissed even if the correct procedure had been followed.
Furthermore, when the Employment Act 2002 comes into force, if the statutory procedure has not been completed because you have failed to comply with its requirements, for example if you have unreasonably failed to attend a disciplinary meeting, then the Employment Tribunal may reduce your award by between 10 and 50 percent. Your award may also be reduced by such an amount if you have failed to exercise your right of appeal against your dismissal.
If you are denied your rights under a contractual procedure (including the statutory procedures once the Employment Act 2002 comes into force) you may seek an injunction in the High Court to prevent your employer acting upon your dismissal or taking other disciplinary action until the procedure has been exhausted. This means you are to be treated as still employed, although perhaps not being required to work, until the full trial of your case for wrongful dismissal. Public funding is available for this type of claim.
