We can’t tell you how many times we’ve been asked this question…but it’s a lot! Therefore, we thought it was about time we put our answer down in black and white.
First and foremost, it’s commonly known that employees need to have chalked up two years’ service in order to be able to claim ordinary unfair dismissal.
That said if the disciplinary procedure is contractual and it’s not followed during the dismissal process, the employee could claim breach of contract. Granted, a successful claim in this regard will only result in an award for damages in respect of lost earnings for the length of time it would have taken to follow the disciplinary procedure. However, it’s probably a claim that employers could do without having to spend time and money on defending.
Furthermore, it’s also the case that there’s no qualifying service requirement applicable to discrimination claims, or claims for automatically unfair dismissal where termination was for an unlawful reason such as health & safety or pregnancy. Regarding the former, it won’t always be clear whether there’s potential for a discrimination claim arising from dismissal, so it’s sometimes wise to at least go some way towards following a “fair” procedure in the lead-up to dismissal in order, for example, to reduce the risk of a 25% uplift to the compensatory award for failure to follow the relevant Acas Code of Practice.
In summary then, it’s usually the case that employers should use a “horses for courses” approach to the headline question here and adapt the procedure they follow (or lack of it!) to the circumstances at hand. Adopt aย “one size fits all approach” and it’ll probably catch up with you at some stage.
