When an employer disciplines or dismisses an employee, they are legally required to follow established disciplinary and dismissal procedures. These procedures are inextricably linked and must be clearly stated as part of the employee’s contract of employment. A standard disciplinary procedure must be followed in order for an employer to achieve a dismissal that is considered both fair and consistent with best practice.
Determining a fair procedureBoth disciplinary and dismissal procedures must contain specific elements to be considered ‘fair’. Firstly, a distinction is made depending on an employee’s length of service with a company. If the employee has worked under two years’ service, they have no right to claim unfair dismissal. If the employee has worked two or more years’ service with a company then the following disciplinary procedure must be followed as a brief general overview:
- Conduct an investigation into the matter
- Inform the employee of any issues following investigation
- Invite the employee to a disciplinary hearing
- Hold the disciplinary hearing and issue outcome
- Allow right to appeal
Avoiding unfair dismissalsRegardless of the exact nature of the issue, employers must act reasonably during the dismissal and disciplinary process to avoid any chance of the dismissal being contested by an employee and deemed ‘unfair’ by an employment tribunal. Failure to follow clear disciplinary and dismissal procedures may result in an unfair dismissal. To avoid this risk, it is vital that employers ensure all employees are aware of the relevant procedures in place as part of the employment contract and induction process. Even in cases of gross misconduct, a clear procedure must be followed in order to determine a fair dismissal and the employee must always be given the chance to have their say. The idea of an instant dismissal – ‘you’re fired, pack up your desk’ – is hardly ever appropriate or advisable. Any prospective sanctions should always match the severity of the issue. For instance, dismissal for being late just once or twice over the course of five years will not be considered a reasonable course of action by the employer and is likely to be judged ‘unfair’.
Penalties for the employerIf a tribunal rules against an employer for unfair dismissal, the employer may also be liable to pay compensation, depending on the employee’s age, salary and length of service. The amount of compensation is technically limited to a year’s salary, with an overall cap of £93,332. However, in some cases where the employee’s salary is significantly higher than that figure – £250,000 for instance – then the maximum limit is removed.
Getting your disciplinary approach rightThe prospect of conducting a disciplinary is rarely an enticing one for employers and employees alike. This makes it essential to have a robust disciplinary procedure in place so that there are a clear set of guidelines to follow in the event of a potentially difficult situation. The best practice advice on disciplinary procedures provided by Acas is a useful resource through which to cross-reference your own approach. In many cases, minor misconduct can be dealt with informally, and repeated or more serious conduct should be addressed by a formal process. The Acas guidelines can help to clarify the parameters of reasonable behavior and fair action in response to an incident.
Acas & dismissal proceduresThe Employment Rights Act 1996 details the right not to be unfairly dismissed. Although it is not formal legislation, Acas, the Acas Code of Practice on Disciplinary and Grievance Procedures sets out the disciplinary procedure that is generally expected of an employer. This is a statutory code of practice which means that a tribunal has to consider whether the employer and/or employee has adhered to its provisions and if not, then the unfair dismissal compensation can be adjusted appropriately. By itself, a breach of the code’s provisions is not enough to be able to make a claim to tribunal.
- Employers must establish clear disciplinary and dismissal procedures, written as part of the employment contract.
- All dismissals, even those for gross misconduct, must comply with formal procedure. Instant dismissals – i.e. ‘You’re fired’ – are never appropriate and may be deemed as ‘unfair’ behaviour when presented to an employment tribunal.
- Unfair dismissals can result in significant penalties for the employer, including a compensation settlement relative to the employee’s salary.