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Procedural flaws did not make a dismissal unfair

In the recent case of Buzolli v Food Partners Ltd UKEAT/0317/12, the EAT considered an employer’s failure to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures (the “Code”).

The Code states that where an employee is invited to a disciplinary hearing which could lead to dismissal, the invitation should spell this out. It also states that where a final written warning is issued, the employee should be told of the consequences of further misconduct. The Code is not legally binding, however, a tribunal will take it into account in determining whether a fair procedure has been followed. Where an employer is found to have unreasonably failed to follow the Code, compensation can also be adjusted by up to 25%.

Mr Buzolli was a driver who received a final written warning in March 2010 after failing to turn up for work because he was under the influence of alcohol. He was then dismissed in November 2010 after driving into a bridge causing considerable damage. He claimed that his dismissal was procedurally unfair on the basis that Food Partners had not complied with the Code because:

  • The warning letter did not state that further misconduct during the life of the warning could result in dismissal; and
  • The disciplinary invitation did not put him on notice that a possible outcome could be his dismissal.

The EAT upheld the tribunal’s decision that the dismissal was fair despite Food Partners having failed to comply with the exact requirements of the Code. Both the tribunal and the EAT relied on the content of the employer’s disciplinary policy (which made the consequences of a final written warning clear) and found that “as a matter of common sense”, Mr Buzolli ought to have been aware that further incidents of misconduct in the 12 months following his final written warning could result in his dismissal.

What appears to be a favourable outcome for employers should be considered with caution. This case is fact specific and the existence of an unequivocal final written warning and a clear disciplinary policy helped the tribunal reach the conclusion that Mr Buzolli was fully aware of the risk of dismissal. It remains the case that employers should follow the guidance set out in the Code and ensure that employees are put on fair notice of the potential consequences of a disciplinary hearing or of further misconduct following a warning.

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