08/02/2007
While the three-step statutory procedures do not lay down a timetable for when each of the steps must happen, they do specify that each step must be taken “without unreasonable delay”.
This provision has recently been the subject of an EAT hearing and it was held that an unexplained three month delay in an internal appeal, where nothing had been happening, was a breach of the procedure and so rendered the dismissal automatically unfair.
The case concerned redundancy and there was a history going back some years. The employees were interpreters. They had been on sick leave and subsequently special leave with pay, whilst a dispute about the use of freelance interpreters, in preference to them, was being resolved.
The employer had attempted to persuade them to take alternative work and had said that if they were not willing to do this they would be made redundant. The employees refused and on 4 February 2005 were dismissed. The employees’ appeal was heard on 13 June and was unsuccessful.
Successful claims of unfair dismissal were brought, but the Tribunal did not consider the delay unreasonable because no specific timetable was set by the Regulations. As a result, the dismissals were not automatically unfair and no uplift was applied.
The point went to the EAT, which held that it was not enough to say there was no specific time limit. The mandatory requirement was for there to be no unreasonable delay. Three months of nothing happening in an internal appeal was unreasonable without an explanation. Exercising its discretion, the EAT found the dismissal automatically unfair; thereby allowing an uplift on the award.
The “without unreasonable delay” provision applies to all the steps in the statutory procedures and delay is especially likely to occur where an employee is off sick or suspended. Employers should therefore keep this decision in mind and ensure that if there is delay there is a good explanation for it.
Employers ought to be proactive in ensuring the steps are taken in a timely fashion. Obviously, if an employee is not engaging in the process, they themselves will be in breach; but it will not be enough for an employer to blame the employee for delay if it has not been proactive itself.
(Khan and another v The Home Office, 2007)
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