Zimmer Ltd v Brezan EAT/0294/08

automatically unfair dismissal | step one letter | risk of dismissal

The Employment Appeal Tribunal (EAT) has upheld an employment tribunal finding that a dismissal was automatically unfair because the risk of dismissal was not made clear in the step one letter.

Mr Brezan was employed as a regional sales manager by Zimmer Ltd. Following an investigation into his mileage and expense claims, he was sent an email on 7 November 2006 confirming that a disciplinary meeting was arranged for 9 November to discuss these claims. A copy of the disciplinary procedure was attached, which set out the procedural stages and the types of conduct that amounted to misconduct and gross misconduct and the potential disciplinary action that might result. After further meetings Mr Brezan was dismissed for misconduct on 24 November. The employment tribunal found that, among other matters, the dismissal was automatically unfair because Zimmer Ltd had failed to comply with step one of the statutory dismissal and disciplinary procedure. The email sent on 7 November did not indicate that there was a potential case of gross misconduct and a risk of dismissal. Zimmer Ltd appealed.

Under step one of the statutory procedure, an employer "must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee" (para.1(1) of sch.2 to the Employment Act 2002). Zimmer Ltd argued that the natural meaning of para.1(1) requires an employer to set out in writing the alleged conduct or characteristics giving rise to the contemplated dismissal but there is no obligation for it to set out that it is contemplating dismissal. The comma between the words "circumstances" and "which" separates and distinguishes the obligations before and after it. Zimmer also argued that the different view of the EAT in Alexander and another v Bridgen Enterprises Ltd [2006] IRLR 422 EAT and Homeserve Emergency Services Ltd v Dixon EAT/0127/07, which followed Alexander, was obiter dictum. The EAT disagreed. It held that, although the relevant part of the judgment in Alexander was obiter, para.1(1) should be construed consistently with Alexander and Homeserve. The words after the comma, despite the comma, describe the obligation in the procedure, not just the words that precede it. The purpose of the step one letter is not achieved unless the employee can understand the risk of dismissal. Nor did the EAT accept Zimmer Ltd’s argument that Mr Brezan knew of the risk of dismissal because he was sent the disciplinary procedure. The email of 7 November made no reference to misconduct or gross misconduct and did not direct Mr Brezan’s attention to any specific part of the procedure. The appeal was dismissed.

Case transcript of Zimmer Ltd v Brezan (Microsoft Word format, 77K) (on the EAT website)

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