One particular example of a dismissal that falls within the breach of statutory duty or restriction category is the loss of registration status with a professional regulatory body. Nurses, Teachers, Social Workers, Doctors, Psychologists, Solicitors, Accountants, Physiotherapists - the list could go on - all require to be registered with a professional regulatory body constituted by statute in order to practice their profession. If a regulatory body 'strikes off' or suspends a registered professional from their register, finding them not fit to practice, then both the employer and the employee would be in contravention of a restriction imposed under an enactment if the employee continued to practice their profession.
Where an employer is entitled to rely on section 98(2)(d), matters of procedure are not irrelevant. Whether the alleged contravention was so clear and so serious that it would be reasonable for the employer to dismiss without following normal procedures depends on the circumstances. Even if it is reasonable to proceed speedily to dismissal, there is no reason why provision should not be made for an appeal. That might be of particular importance where the illegal state of affairs was disputed, or was technical, or arose from some kind of oversight which could be remedied by the time the appeal was heard. A failure to follow a reasonable procedure might in itself make the employer's action in dismissing the employee unreasonable, unless the employer could establish that he would have dismissed if he had followed a fair procedure (Kelly v University of Southampton [2008] I.C.R. 357).
It is not always reasonable to dismiss where an employer can rely on section 98(2)(d). It might be unreasonable to dismiss where the position had resulted from some past omission of the employer. (Sandhu v Department of Education and Science and Hillingdon LBC [1978] I.R.L.R. 208). A past omission might be an unreasonable failure to discuss the issue with the employer and regulatory body to see whether what had gone wrong could be corrected.
It is entirely possible for a scenario to arise where an employee has been dismissed by their old employer on conduct or capability grounds and referred to their regulatory body, but in the meantime commenced employment with a new employer entirely legally. However, if the regulatory body subsequently decides to suspend or 'strike off' the registrant the new employer must act, even if they themselves have no issues with their employee's performance.
Employers must be careful to avoid the trap of stating that the reason for dismissal was the conduct or capability issues arising in the old employment which led to the referral to the regulatory body. The new employer would not have the information to conduct a fair investigation into the previous conduct or capability issues. It is enough simply to state that the reason for dismissal is that to continue to employ the employee would constitute a breach of the relevant statute.
Our advice to employers who employ registered professionals is to establish good links with the relevant regulatory body and regularly check their employees registration status online. Whilst in the majority of situations dismissing a registered professional who has been removed from the register will be fair, the usual investigations and discussions should still take place so as to firmly establish the reason for dismissal and to show that alternatives to dismissal have been considered.
