A recent Court of Appeal case has highlighted an important issue regarding unreasonable delays in the statutory dismissal procedure.
The failure of an employer to carry out every step in the statutory dismissal procedure means that the dismissal is automatically classed as unfair. However, the procedure clearly states that each step should be carried out “without unreasonable delay”. So, if an employer carries out the full statutory dismissal process but does not do so without unreasonable delay, does this automatically count as unfair dismissal?
In the case of Selvarajan v Wilmot, the Court of Appeal ruled that it does not. The unreasonable delay does not affect the fact that the statutory process has been adhered to, therefore the dismissal is not automatically unfair (although a long delay could later potentially contribute to the dismissal being found unfair under the normal fairness test).
This ruling leaves employers with a difficult choice to make: if a step in the dismissal process is delayed unreasonably by the employer, the employee can choose to not attend the meeting and rely on the unreasonable delay as the reason for the procedure not being completed (which could entitle the employee up to a 50% greater award as the dismissal could then be deemed automatically unfair). Alternatively, the employee can attend the meeting and complete the procedure, missing out on the possible higher award but avoiding the potential for a reduced award if the delay is found by the Tribunal to be reasonable.
For further information and advice on this and other employment law topics, get in touch with Ashby Cohen today. With years of experience in the specialist field of employment law, Ashby Cohen are perfectly placed to help you with employment law advice.
