||All England Reporter
|| All ER (D) 151 (Jun)
||Employment Appeal Tribunal
Cox J, Mr A Harris and Mr J Rivers
||Sally Cowen (instructed by HIW Commercial Employers LLP, Sheffield) for the employee.
||The employer appeared by its representative.
||12 June 2008
Unfair dismissal - Determination whether dismissal fair or unfair - Dismissal for misconduct - Correct approach to determining fairness of dismissal - Employer dismissing employee for gross misconduct - Employer following statutory dismissal procedures - Whether dismissal unfair - Whether dismissal automatically unfair - s 98A - s 31(6)(b), Sch 2, Pt 1, Sch 2, Pt 3, para 12 - (Dispute Resolution) Regulations 2004, , reg 12.
Notwithstanding the provisions of of the Employment Act 2002, there was no regulation which made express provision as to when a procedure under Pt 1 of Sch 2 to the 2002 Act was to be 'taken to be completed'. 'Completion' and 'non-completion' were nowhere defined, save that non-completion was stated in reg 1 of the (Dispute Resolution) Regulations 2004, to include the non-commencement of a statutory procedure. Regulation 12 alone referred to 'non-completion' and, in the context in which those words appeared, it appeared clear that reg 12 was making provision for the consequences of an employer's failure to comply with the requirements of the statutory procedures including, expressly, the general requirements. Such a failure was therefore to be regarded as a non-completion of the procedure.
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