To bring someone’s employment to an end, with the associated costs and problems for both employee and employer, is not a decision to be taken lightly. Employees have rights and employers have obligations. There are various claims which can be made to the Employment Tribunal against an organisation before the individual has even been interviewed, let alone employed (see Advertising Vacancies).
Most employers are aware of the right to claim unfair dismissal after one year’s service – although recent Government movements in this area mean this may be increased to two years. There are two further rights to which an employee becomes entitled at that time and those are the right to written reasons for dismissal (except, importantly, when the employee is pregnant or on maternity/adoption leave, in which case there is no service qualification) and the right to parental leave. After two years’ service there is also the right to a redundancy payment.
By far the majority of cases are lost at Tribunal because of failure to follow a fair procedure to sack the individual. Procedure is all. It is interesting to note that larger employers rarely lose on procedural grounds as they have personnel departments and lawyers. Small employers normally (at least 80%) lose because of failings in procedure.
It is vital to ensure therefore that all employees are given a statement of main terms, supported by a handbook, to define terms and conditions of employment, especially with regard to disciplinary rules and procedures, and an appeal procedure. Employees must know of their rights and obligations under these procedures and an employer will need to prove that they do – a signed induction checklist is enormously helpful in this regard.
A model fair procedure is defined in the ACAS Code of Practice which of itself is not statute but if you break the Code’s minimum standards it will be enormously difficult to convince a Tribunal that what you did was fair.
Tribunals are bound to take into account the size and administrative resources of the employer when considering their decision. However, all employers are expected to meet a minimum standard and that would encompass, at least, clear notification (in writing) and sufficient detail, sufficiently long before the hearing, to enable the employee to prepare him or herself properly. If they wish, they must be allowed to have a fellow employee, or their union representative, accompany them during the hearing. The cause of dissatisfaction should be described and the individual allowed to respond in entirety before being challenged on anything they have said. If there are witnesses they must be brought in to state their evidence and the employee must be allowed to challenge them and their evidence. Ensure you have a witness with you and that they take detailed notes.
It is wise not to reach a decision there and then but to think about it at least overnight, particularly if this is the last stage in the procedure following warnings and the individual is now about to be dismissed. The decision should be relayed to the individual, at a re-convened meeting, and confirmed subsequently in writing. Such confirmation, including what would happen if there is a re-occurrence, must contain details of the right to appeal and how to do so. If they should appeal, conduct one. The appeal can take the form of a complete re-hearing or just deal with the issue(s) appealed against. The format is broadly the same as for the original hearing and should follow what is laid down in your contractual terms. A full re-hearing does have the virtue, if carried out properly, of remedying any defects in the original disciplinary hearing which deals with the appeal or just the issues raised.
Normally Tribunals, when reaching a decision, will take cognisance of statute, such as the right to be accompanied (law laid down by Parliament); contract law (i.e. what was agreed between the parties) and best practice before reaching their decision as to whether it was fair or not. Much of “best practice” can be thought of as being governed by the various ACAS Codes of Practice.
Tribunals are won in the workplace, not in the Tribunal room, by having clear rules and procedures, known to, and understood, by everyone. The rules and procedures must be enforced continuously and without exception (unless it can be justified for an objective reason). Facing a Tribunal where you have not even issued contract of main terms, where rules are not published or known and no form of fair or consistent procedure has been followed, is a recipe for disaster. Whilst it does take time, effort and money, to set up everything properly, it does result in a more controllable and controlled workforce and a sound platform for the defence at Tribunal.
When dealing with potentially gross misconduct issues, after any necessary immediate investigation the individual must be suspended from working. Since gross misconduct offences normally result in summary termination of employment, if guilty, it is obviously prudent to ensure all stages of the procedure are carried out properly and fairly.
Dismissal for gross misconduct should be a very rare occurrence – most employees do not set out to get themselves sacked. Even dismissal, following warnings, should be relatively rare since, if operated properly, the disciplinary procedure should have pointed out the rules and standards required and resulted in them being followed. Do not dismiss lightly else it will cost you dearly.
Finally, occasionally “life gets to you” and employees are invited to leave the premises in an impossible manner and clearly unfairly by any judgement. Such dismissals (referred to as ‘hasty words dismissals/resignations’ in the trade) are capable of being rescued providing only that you remedy the defect immediately. If such a one happens to you, or you do it, take professional advice immediately.
The only six potentially fair reasons for dismissal are: conduct, capability (including qualifications, etc., and health); redundancy; a legal prohibition or ban, retirement and, some other substantial reason.