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Dismissals in the Civil Service - Good practice principles applied by the Civil Service Appeal Board

Procedures

The Board has to be satisfied that relevant procedures, laid down in Departmental and Agency Codes and Guidance, have been followed satisfactorily.

The Employment Act 2002 (Dispute Resolution) Regulations 2004 brought into effect, from 1 October 2004, the provisions in the Employment Act 2002 which sets out minimum statutory dismissal and disciplinary procedures. These apply where the employer first contemplates dismissing or taking such action against an employee on or after that date. Failure to follow the statutory procedures, which apply to all dismissals, will mean that under these Regulations the Board or an Employment Tribunal must find the decision automatically unfair. The procedure involves three stages:

Stage 1

The employer must set out in writing the employee’s alleged conduct or characteristics or other circumstances which led them to contemplate dismissing or taking action against the employee.

The employer must send a copy of the above statement to the employee and invite him or her to attend a meeting to discuss the matter.

Stage 2

The meeting must take place before the action is taken and must not take place unless:

• the employer has informed the employee about the reasons for the meeting; and
• the employee has had a reasonable opportunity to consider his/her response to that information.

On his/her part, the employee must take all reasonable steps to attend the meeting at which he/she may be accompanied.

After the meeting, the employer must inform the employee of his decision and notify him or her of the right to appeal against the decision if he or she is not satisfied with it.

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Stage 3

If the employee wishes to appeal, he/she must inform the employer.

The appeal meeting need not take place before the dismissal takes effect.

If the employee informs the employer of his/her wish to appeal, the employer must extend an invitation to attend a further meeting at which the employee may be accompanied.

The employee must take all reasonable steps to attend the meeting.

When reasonably practicable, the appeal should be dealt with by a more senior official than the one who dealt with the disciplinary hearing.

After the appeal meeting, the employer must inform the employee of the final decision.

There is a modified two stage procedure for use in special circumstances involving gross misconduct, when summary dismissal has taken place. The Board recommends that reference is made to the ACAS Code of Practice for further details with regard to the new dismissal and disciplinary procedures.

It is possible that, even if the new statutory dismissal and disciplinary procedures have been followed, other procedural shortcomings could justify the dismissal being found procedurally unfair, in accordance with the principles established in the case of Polkey vs A E Dayton Services Ltd.

In cases of discipline/ misconduct:

• have the individuals been informed, in writing, of the specific charges being laid against them?
• have they been advised of their representational rights at fact finding and disciplinary interviews (work colleague, trade union representative)?
• have they been provided with copies of notes/minutes taken at fact finding and disciplinary interviews and given an opportunity to comment?
• have they been told of their right of internal appeal, following a decision to dismiss?
• have they been advised that dismissal could be a consequence of disciplinary action?
• are the rules and regulations clear enough and is there a process in place to ensure the effective communication of relevant policies and procedures?

Serious procedural shortcomings can arise when Departments and Agencies deal with inefficiency cases and the following points should be noted.

In cases of dismissals for inefficiency on the grounds of unsatisfactory performance:

• have the individuals been told precisely what their shortcomings are and what has to be done and over what timescale, to try to put matters right?
• have they been advised that if a satisfactory level of performance is not achieved, dismissal could be a consequence?
• have appropriate targets been set for monitoring periods and have notes been kept of monitoring meetings?
• has appropriate remedial training been arranged and undertaken?

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In cases of dismissal for inefficiency on the grounds of unsatisfactory attendance:

• when frequent intermittent absence is the trigger for action, have warnings been issued at the appropriate times and in the correct sequence, including reference to the possibility of dismissal if attendance levels do not improve?
• when long term absence is the trigger for action, have sufficient efforts been made by management to keep in touch with the individual; have attempts been made to involve Welfare and the Occupational Health Advisers?
• has due regard been taken of the advice given by the Occupational Health Advisers in respect, for example, of making reasonable adjustments within the workplace to facilitate a return?
• have avenues to facilitate a return to work been explored, for example, a phased return to work, part time working, work in a different location?
• in cases of long term, absence, have the individuals been given due notice of the intention to dismiss and the opportunity to make representations?

In cases of dismissals for failure of probation:

• have timescales for the submission of interim and final reports been respected?
• have individuals been advised, where appropriate, of shortcomings in attendance, conduct and performance and told that if a satisfactory standard is not attained, dismissal could be a consequence?
• In all cases procedural good practice dictates that Departments and Agencies should deal with the disciplinary and inefficiency procedures as expeditiously as possible. Failure to do so, particularly when timescales are laid down in Departmental and Agency procedures could render the dismissal procedurally unfair, particularly if it can be demonstrated to the Board that the delay itself has been to the material detriment of the individual.