FITNESS SOLUTIONS SCOTLAND LTD v MR DAVID PARK [2009] UKEAT 0032_09_1311

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2009] UKEAT 0032_09_1311

Case No Appeal No. UKEATS/0032/09

Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF

Between

FITNESS SOLUTIONS SCOTLAND LTDAPPELLANT

MR DAVID PARKRESPONDENT

Before

Lady Smith Mr J M Keenan

Date 13 November 2009

[1]APPEARANCES For the Appellant MR S. MAGUIRE (Solicitor) Creideasach Employment Law Specialists Office 21, Inglewood House Inglewood Alloa FK10 2HU For the Respondent MR D. FRANK BURR (Advocate) Instructed by: Innes Johnston Solicitors 5 – 7 Commercial Road Leven Fife KY8 4LE SUMMARY Statutory dismissal procedure. Tribunal erred in finding that there had been a failure to follow the procedure where they had considered only whether or not it had been followed prior to the date of the employers' decision to dismiss. They should have considered whether or not it had been followed in the course of the procedures that were followed by the employers after that date and before the claimant was actually dismissed since those procedures were capable of remedying the earlier deficiency.

[2]Tribunal also failed to have proper regard to apparent anomaly between date of "dismissal" meeting and termination date in circumstances where an agreement was reached between parties involving payment of money to claimant.

[3]Interpretation of paragraph 13(1) of Schedule 2 to the Employment Act 2002 . THE HONOURABLE LADY SMITH INTRODUCTION BACKGROUND Relevant Law "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 employers must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter. 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 shall not take place unless –(a) the employer has informed the employee what the basis was for including in the statement under paragraph (1) the ground or grounds given in it.

(b) The employee has had a reasonable opportunity to consider his response to that information. (3) The employee must take all reasonable steps to attend the meeting. (4) After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against that decision if he is not satisfied with it." "(2) Meetings must be conducted in a manner which enables both employer and employee to explain their cases." "If either party fails to comply with a requirement of an applicable statutory procedure , including a general requirement contained in Part 3of Schedule 2, then subject to paragraph 9(2), the non completion of the procedure shall be attributable to that party and neither party shall be under any obligation to comply with any further requirement of the procedure." "32 …in our judgment, 'action taken' refers to the action which the employer is contemplating, either dismissal or disciplinary action other than dismissal. This view is supported by the fact that the modified procedure in Chapter 2 of Part 1 of Schedule 2 to the 2002 applies, by regulation 3(2) of the Regulations, to limited circumstances in which the dismissal has already occurred; it contained no reference to any requirement in relation to 'action taken'. 'Action taken', in our judgment is not some lesser step such as informing the employee that he is going to be made redundant." The Tribunal's Judgment " …at the point when the respondents took the action of deciding to dismiss the claimant (Step 2(1)) they had failed to comply with Step 1(1) or 1(2) in that they had not written to the claimant setting out his alleged misconduct before the meeting took place. They also failed to comply with a (sic)2(2)(a) in that they had not informed the claimant at that point the basis of including the statement of the claimants alleged misconduct." (paragraph 67) The Appeal Discussion and Decision Disposal