09 July 2019

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 (or two year's service if the person was employed on or after 6th April 2012). By far the majority of cases are lost at Tribunal because of failure to follow a fair procedure to sack the individual. A proper procedure is everything.

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 the 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 on Disciplinary and Grievance Procedures which of itself is not a statute but if you break the Codes 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.

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.

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). 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. The only potentially fair reasons for dismissal are:

  • conduct, capability (including qualifications, etc., and health) 
  • redundancy (always consult redundancy legal advice)
  • a legal prohibition or ban
  • or another substantial reason

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