Recent case law has shown that employers need to give these regulations their full attention and respect. A number of employers have fallen foul of them resulting in financial penalty at Tribunal.

A recent case in which Rustons were involved resulted in the following damages being awarded against the Respondent:

£560 for no written employment contract/written particulars of employment

£2419 for non-compliance with the regulations. (A 40% uplift of the Claimant’s loss of earnings).

These sums were in addition to loss of earnings, notice pay and basic award. The Respondent was ordered to pay the Claimant in excess of £11,000.

The Respondent (who was a non-British Company) was not aware of the Regulations, as they believed they were governed by the Employment Laws in their own Country. Therefore they did not attempt to deal with the situation in accordance with the UK Employment Regulations.

The Respondent did have a staff handbook and a letter of appointment. However the letter did not constitute written particulars and the handbook stated it was not contractual. Therefore the Respondents were not able to rely on a jurisdictional argument to avoid the claim.

However, it was decided by the Tribunal that the failure to comply with the regulations was not a blatant one. The Respondent genuinely believed that they were governed by other laws and did not know of the regulations in question. If they had been a British company, then any increase in damages would have been 50% and would have, in all likelihood, been against all the damages awarded and not just the loss of earnings. This would have amounted to an uplift of £4,754, nearly double the amount awarded by the Tribunal.

If the Respondent complied with the regulations, the Claimant would have been dismissed fairly and with notice. If this had been the case, the Claimant would have received, at the very most, £560 for not having a contract of employment.

Unfortunately, this Company was not aware of the UK regulations and therefore dismissed the employee without undertaking any disciplinary processes. Neither did the employer entertain the employees two requests for an appeal of his dismissal.

If, on advice from their legal representatives they had undertaken the appeal, then they could have at least reduced any uplift of damages to 10% of the claim, but may well have removed any recourse for damages by instigating the procedures, even if a little late.

A well run appeal can ensure that any failings in the disciplinary process are negated. The employer would need to show that they have registered and highlighted any failings in the original procedure and addressed those points. They would then need to reach a reasonable and fair conclusion based on the situation. This could be that the procedure be re-run with different managers in charge; a complete overturning of the original decision; a partial overturning of the decision (i.e. payment of notice where there had been none previously); or, affirming the original decision and setting out the reasons for this.

Although this case relates to a non-British company, the outcome would have been worse, financially, if they had been British. It will be assumed that the company knows or should have known of the Regulations. Any subsequent failure to comply with them would be deemed to have been a blatant disregard for them; particularly where they were not applied at all. Ignorance of the Regulations is not a defence and any employer should ensure that they are aware of their obligations under the regulations and can and will comply with them.

The Regulations allow for the uplift in damages to be between 10 and 50% for failing to comply. If the failure is significant, then the uplift will be at the higher end of the range. However, if the failure is minor, for example, the employee was not informed that they could have a witness at the disciplinary meeting or were not given 24 hours notice of the meeting, then the uplift would be at the lower end of the range.

As more and more employees are likely to sue it is very important that employers do everything possible to dismiss their employees fairly and reasonably. They should give particular regard to the regulations as failing to do so, could result in substantial financial penalties.

To avoid this, employers should do the following:

1. Ensure all employees receive a contract of employment, setting out the terms of their employment, within 8 weeks of starting.

2. Where an employee is to be disciplined for performance or conduct, the employer should write to them advising them of when the hearing will be, the reasons for it, and that they have the right to a witness being present.

3. Once a hearing has taken place the employee should receive the response in writing and be informed of their right to appeal and who the appeal should be made to and when.

4. If an appeal hearing is requested, it must be held promptly, be dealt with by someone other than the person who dealt with the disciplinary hearing, notified to the employee in writing and they should again be advised of their right to a witness.

5. The outcome of the appeal should also be put in writing to the employee.

Unfortunately there is not guarantee that an employee will not sue for unfair dismissal. Following these procedures will help to ensure that any financial claim is limited and may result in the claim being dismissed by the Tribunal.

Employers should also bear in mind that these procedures should be applied to any grievance raised by an employee.

Nikki Booth, Solicitor