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Unreasonable delay in procedures means automatically unfair dismissal

Unreasonable delay in procedures means automatically unfair dismissal

In Yorkshire Housing Ltd v Swanson (UKEAT/0057/07), the EAT has confirmed that an unreasonable delay of five months 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, there was a delay of five months between the disciplinary hearing and notification of its outcome to the employee. There was no reasonable explanation for the delay and it was indefensible. Given that it is a requirement under the SDDP that each step and action under that procedure should be taken without unreasonable delay, the EAT considered that a failure to comply with that requirement constitutes non-completion of the SDDP. The effect of this was that the employee could be regarded as automatically unfairly dismissed under section 98A of the Employment Rights Act 1996.

The EAT further commented that delay is always the enemy of fair dispute resolution in the workplace, leading as it does to fading memories, prolonged anxiety, the entrenchment of parties’ positions, prejudice to a fair hearing of the issues, and thereby to injustice. The over-arching general requirement is to avoid unreasonable delay at all stages of the procedure and employers will be well advised to comply with it at every step.

While the statutory dispute resolution procedures will be abolished in April 2009, the ACAS Code of Practice, will replace them and the current draft Code states that part of a fair formal disciplinary process is that “meetings and decisions should not be unduly delayed”. Therefore the same principle about unreasonable delay is being applied and tribunals will be able to adjust any awards made by up to 25% for unreasonable failure to comply with any provision of the Code.

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