Take care if you sack someone using the modified two-step procedure – a new ruling suggests you could easily trip up. A recent ruling by the Employment Appeal Tribunal (EAT) suggests the modified, two-step procedure in dismissal and disciplinary cases should be used with caution by employers.

The case of O’Neil vs Wooldridge Ecotec illustrates how closely employers must follow the Employment Act 2002 (Dispute Resolution) Regulations 2004. The EAT found that O’Neil, a driver sacked for verbally abusing his manager on the telephone, was unfairly dismissed, because the employer left it too long to sack him. In order to use the modified procedure, employers must dismiss the employee immediately.

The tribunal heard that the driver had received no prior notice and no disciplinary meeting was held. He was advised his right of appeal in a letter confirming his dismissal and appealed, unsuccessfully.

The legislation generally suggests the standard, three-stage procedure to be used; however, the modified procedure may be used where all the following conditions are satisfied:

• the employer dismissed the employee by reason of his conduct without notice
• the dismissal occurred at the time the employer became aware of the conduct or immediately thereafter
• the employer was entitled in the circumstances to dismiss the employee by reason of his conduct without notice or any payment in lieu of notice
• it was reasonable for the employer in the circumstances to dismiss the employee before enquiring into the circumstances in which the conduct took place.

The EAT ruled that the modified procedure had not been followed, as the employee was not dismissed until the following day. Step one of the procedure had not been complied with either, in that the employee was not given sufficient detail of the case against him to enable him properly to put his side of the story.

Employers are advised to use the standard three-stage procedure for as long as the current statutory procedures remain in force.

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