Summary Dismissal

From theft to damage of company property - you can face all kinds of reasons for disciplinary action. If the misconduct is serious, it could lead to an instant termination - or a 'summary dismissal'.

Summary dismissals should only be used as a last resort and through the proper process. If it’s neglected, you could end up causing a wrongful or unfair dismissal - resulting in tribunal hearings, compensation penalties, and business losses.

In this guide, we'll look at what a summary dismissal is, what the law covers, and how to follow a fair process during such terminations.

What is a summary dismissal?

A summary dismissal is used when an employee is dismissed with immediate effect. It's also known as 'instant dismissal'.

An employer may consider summary dismissal because the employee's action accounts to an act of gross misconduct or contractual breach. Because of this, the employer has no choice but to dismiss them immediately.

When you summarily dismiss an employee, it's done without notice periods and pay in lieu of notice (PILON). However, before you terminate their employment contract, you must follow a fair and lawful dismissal procedure first.

What is the difference between dismissal and summary dismissal?

The main difference between dismissal and summary dismissal relates to the process. During a summary dismissal, an employee loses their right to statutory minimum notice period.

In an ordinary dismissal, an employee will usually receive one week's notice. They could even receive longer through a contractual notice clause.

In a summary dismissal, the employee loses this right - along with pay in lieu of notice (PILON) if it’s included in their contract. Despite the name, it's not really an instant dismissal. You still need to follow a proper dismissal process and establish fair reasons for dismissal without notice.

When is a summary dismissal fair?

There are certain actions that class as a fair reason for summary dismissal. For example, an employee commits an act of gross misconduct that seriously damages their working relationship with other people (i.e., a colleague, customer, or even the employer).

If gross misconduct is proven, it means they've fundamentally breached their implied duty of mutual trust and confidence in the workplace. As a result, it leads to termination without any statutory or contractual period of notice.

What examples of gross misconduct lead to summary dismissal?

There are so many acts of misconduct that result in summary dismissal. Examples include:

• Serious insubordination.
• Theft and fraud.
• Inappropriate conduct and behaviour.
• Verbal abuse and physical violence.
• Health & safety negligence.
• Misuse or damage to company property.
• Misuse of alcohol and illegal substances.
• Discrimination and harassment.
• Bribery and corruption.

Whilst these may account to gross misconduct, you need to consider the extent of the action. For example, an employee used physical violence to defend themselves from a customer. Their actions may be justified; therefore, a summary dismissal might not be a fair sanction.

Some employers will not consider summary dismissal if it’s a first-time offence. They might issue a demotion or alternative employment instead. If their actions account to gross misconduct, you are allowed to initiate a summary dismissal straightway (in compliance with a fair disciplinary process).

When is summary dismissal unlawful?

Instant dismissal isn't a suitable outcome for all types of conduct. There are situations where it's better to go through a disciplinary process before thinking about summary dismissal. Examples of this include:

• Insubordination (not including serious insubordination).
• Constant lateness.
• Higher absenteeism.
• Bad personal hygiene.
• Low engagement and poor performance.

What is the law on summary dismissal?

Employment law requires employers to avoid any actions that may lead to unlawful dismissal. You must have a legal and valid reason to dismiss an employee without notice. If you don't, you could end up causing:

• Wrongful dismissal: This is when an employee's dismissal has breached their contract terms. Employees can raise a wrongful dismissal claim as a contractual right.
• Unfair dismissal: This is when an employee's dismissal is conducted without a potentially fair reason. Certain employees can raise an unfair dismissal claim as a statutory right.

Summary dismissal must involve acts of gross misconduct - regardless of how it happened. Through a fair disciplinary procedure, you'll be able to determine whether summary dismissal is justified through employment law.

If you neglect this, an employee may raise this to an employment tribunal (ET). If their claim is successful, you could be forced to reinstate jobs and pay compensation. You may even suffer from ruined employee morale, higher staff turnover, and irrecoverable business damage.

Do you need to give full pay during summary dismissal?

If an employee faces summary dismissal, they legally must receive their full pay until the day they're dismissed. This includes being given any statutory holiday pay that they've accrued up to this point.

However, if their contract states otherwise, you can withhold holiday pay that exceeds the statutory minimum amount of 5.6 weeks. But this must be part of their contractual terms, as well as your summary dismissal process.

How to follow a fair summary dismissal procedure

Every employee should know what constitutes as gross misconduct leading to instant dismissal. (Although there isn’t an exhaustive list outlined in law).

However, every employer must still follow a fair procedure - just like you would for any other disciplinary matter. This will highlight alternative forms of disciplinary actions before using dismissal. And help you decide whether summary dismissal is the most suitable decision.

Let's take a look at how to follow a fair summary dismissal procedure:

Start a fair disciplinary investigation

The first step employers should take is starting a disciplinary investigation.

This should be done as soon as you're aware of an employee's alleged act of gross misconduct. A proper investigation will help establish the facts, highlight mitigating circumstances, and collect witness accounts.

Once you've looked at all findings and evidence in the investigation, you'll have a clearer idea of what steps to take next.

Decide on temporary suspension

Based on the misconduct, you may need to temporarily suspend the employee in question. This should only be done if it's absolutely necessary. For example, keeping them separate from other colleagues connected to the case.

During suspension, employees are still entitled to their full wages unless their employment contract states otherwise. However, this won’t include appropriate notice rights.

You should present your decision for suspension in writing. Clarify that suspension isn't a form of disciplinary action; rather it's only used as an investigation holding measure.

Invite them to a disciplinary hearing

Employers should then invite the employee to a disciplinary hearing to discuss the case in full.

Invite them in writing and outline a suitable date for the hearing. The date should provide enough time for the employee to prepare their defence. They should also be told about their right to be accompanied; i.e., by a trade union representative or colleague.

During the disciplinary hearing, the employer should cover what the allegation is, what evidence has been found, and who has been affected. The employee (or their representative) should also be allowed to present their case without interruption or bias.

Make a final decision

Once the hearing is done, the employer must make a fair and final decision.

You might decide to deal with the conduct through disciplinary action, like demotion or alternative employment. Or you could decide on summary dismissal based on the seriousness of the misconduct.

Issue a summary dismissal letter

The last step involves the employer issuing a summary dismissal letter to the employee. The letter should summarise:

• What the allegation was (i.e., serious breach, gross negligence, etc.).
• Why the employee has been summarily dismissed (i.e., due to damage to company property).
• What the date for the dismissal is.
• What the disciplinary appeal process includes.

The dismissal letter should also cover any post-dismissal clauses included in an employee's contract. For example, restrictive covenants (like working with a competing business) or non-disclosure agreements (NDA).

Outline their right to appeal

The employee should be aware of their right to appeal the decision. The letter may include an appeal process. Inform them on their right to appeal as well as the right to appeal hearing representation. A further decision will then be passed by an employment appeal tribunal.

Remember, it's important to follow a fair process for all dismissal. Your intentions may be to conduct a statutory or contractually lawful dismissal. But one bad move and employees may be wrongfully or unfairly dismissed.

Seek expert legal advice on summary dismissal with Peninsula

Summary dismissals should only be used as a last resort. You should follow all methods of disciplinary procedure before dismissal.

But you need to summarily dismiss an employee, follow correct procedures for fair dismissal. Make sure they're fully aware of your fair reasons, as well as their legal rights and termination entitlements.

If not, it could lead to wrongful or unfair dismissal - resulting in tribunal hearings, compensation penalties, and business losses.

Peninsula offers expert advice on summary dismissals. Our teams offer 24/7 HR advice which is available 365 days a year. We take care of everything when you work with our HR experts.

Want to find out more? Contact us on 0800 028 2420 and book a free consultation with an HR consultant today.