The EAT has backed the view of the Employment Tribunal that a failure to inform the employee that he was in danger of losing his job made the dismissal automatically unfair.
The EAT did concede, though, that the important consideration was whether or not the employee knew that dismissal was an option at a meeting and not whether that information came in the letter or email. It concluded, though, that the employee in this case did not.
Nico Brezan worked in sales for Zimmer, a maker of orthopaedic products. He covered a large area of the south of England and was being considered for a promotion to an office-based role. However, the company investigated his mileage and expenses claims after he raised concerns about losing his mileage payments.
The company found cause for concern and met with Brezan. Its human resources director then emailed him asking him to come to a meeting to discuss his mileage and expenses claims. She included with the email a copy of the firm's disciplinary policy.
No mention was made in that email of his possible dismissal or of the fact that his behaviour might be considered gross misconduct. He was dismissed later that month.
The Employment Rights Act says that a worker is unfairly dismissed if the steps outlined in 2002's Employment Act are not followed.
The first step says: "The 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."
"The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter," says the Act.
The EAT said that this process had not been followed, and that Brezan did not know that dismissal was a possibility.
Zimmer had argued that Brezan knew that it was a possibility even though the email, which is referred to as a Step 1 letter because it is the first step in a structured process, did not say that. The EAT said that in some cases this might be permissible, but that this was not one such case.
"We accept that on the facts of a particular case it is open to a tribunal to consider that the Step 1 letter, and information provided with it, can be regarded, in the individual circumstances of the case before them, as sufficient to communicate the risk to the employee of dismissal, albeit the letter itself does not expressly say that," said the ruling.
"The email said only that the meeting was to discuss Mr Brezan's mileage and expense claims which had been discussed earlier that day. It made no reference to misconduct, still less gross misconduct," it said.
"As we have already said, it did not direct Mr Brezan's attention to any specific part of the lengthy disciplinary document. It was possible from the letter for anyone to think that the employers were thinking, or might be thinking, not in terms of dismissal at all but in terms of relying on unprofessional conduct or failing to record matters which should be recorded or on other matters falling within the definition of 'misconduct' as opposed to 'gross misconduct'; the whole series of meetings (according to the Tribunal's findings) took place within the context of what appeared to the Tribunal to be an ongoing discussion about the mileage claims."
Though the ruling outlines what is required within the structured process laid out in law, that will not be relevant beyond April, said Ben Doherty, an employment law specialist at Pinsent Masons, the law firm behind OUT-LAW.COM.
"From April the compulsory dispute resolution process will be scrapped as it has not served its stated aim of reducing the number of employment tribunal claims and is disliked by both employers and employees," he said.
"After that, employers will be required to follow the more flexible ACAS guidance, which will impose less strict demands in cases like this. That being said, it is always advisable for an employer to inform the employee in advance of the hearing if the alleged misconduct is gross misconduct and therefore whether one possible outcome at the disciplinary hearing is dismissal," said Doherty.