Procedural fairness is one of the pillars of the provisions for unfair dismissal in the Employment Rights Act 2012.
In Britain, Schedule 2 of the Employment Act introduced minimum statutory disciplinary and grievance procedures (now abolished) which affected procedural fairness to the extent that a failure to follow those procedures rendered a dismissal automatically unfair.
It is essentially those procedures that have been adopted in Part B of the 4th Schedule of the Employment Rights Act 2012.
The case of Alexander vs Bridgen Enterprises Ltd (2006) referred to in last week’s column was in part concerned with interpreting the legal effect of those provisions.
The relevant stages of the procedures required by the English legislation are set out in paragraph 21 of the judgment as follows:
“Step 1: Statement of grounds for action and invitation to meeting
1. (1) The employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.
(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.
Step 2: Meeting
2. (1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.
(2) The meeting must not take place unless
(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and
(b) the employee has had a reasonable opportunity to consider his response to that info.
Step 3: Appeal
3. (1) If the employee does wish to appeal, he must inform the employer.
(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.
(3) The employee must take all reasonable steps to attend the meeting.
(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.
(5) After the appeal meeting, the employer must inform the employee of his final decision.”
Our provisions are the same except that in the case of suspension on less than full pay, the meeting must take place before action is taken. Our legislation also requires that an employee be informed by the employer of his right to have a friend or a shop steward, if he is a member of a trade union, present during the proceedings.
The court then went on to consider what information ought to be provided to an employee in order to comply with the statutory obligation. After considering the purposes of the statutory provisions, Justice Elias observed at paragraphs 38 and 39 of the judgment:
“38. Taking these considerations into account, in our view, the proper analysis of the employer’s obligation is as follows.
“At the first step the employer merely has to set out in writing the grounds which lead him to contemplate dismissing the employee, together with an invitation to attend a meeting.
“At that stage, the statement need do no more than state the issue in broad terms. We agree with Mr Barnett that at step one the employee simply needs to be told that he is at risk of dismissal and why.
“In a conduct case that will be identifying the nature of the misconduct in issue, such as fighting, insubordination or dishonesty. In other cases it may require no more than specifying, for example, that it is lack of capability or redundancy.
“39. It is at the second step that the employer must inform the employee of the basis for the ground or grounds given in the statement. This information need not be reduced into writing; it can be given orally . . .
“In the classic case of alleged misconduct, this will mean putting the case against the employee.”
It is submitted that even though Alexander vs Bridgen dealt with redundancy, in the context of Barbados where a dismissal is contemplated for capability and conduct, the employer must comply with the obligation described above, otherwise the dismissal will be unfair.
• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle,,St Michael.