It is an unfortunate part of business that sometimes employees do things that they shouldn’t, and employers need to make a decision as to whether their misconduct merits dismissal. Sometimes a disciplinary procedure can be straightforward, but at other times things are not so simple.
Employees whose employment started on or after 6 April 2012 will not be eligible to claim unfair dismissal until they have completed two years’ service, but all other employees would be able to make a claim for unfair dismissal if the disciplinary procedure resulting in their dismissal was not conducted properly. Here are our top ten mistakes employers make when dismissing employees on grounds of misconduct:
1. Failing to conduct an investigation
Even when you think the misconduct is obvious, it is best to get all the evidence together to ensure you have a full picture. There could be mitigating factors, or details that create uncertainty. A decision to dismiss will only be fair if the employer has taken steps to find out the true circumstances surrounding the misconduct.
2. Failing to provide details/evidence of allegations to employees prior to a disciplinary hearing
Anyone defending an allegation needs to know in advance what that allegation is and what evidence exists against them in order to prepare their defence. Ambushing an employee would not be looked upon favourably by an employment tribunal.
3. Failing to conduct a disciplinary hearing
Some employers wrongly believe that once they have obtained evidence following an investigation they can then immediately dismiss the employee. However, the employee must be given an opportunity to respond to the allegations against them and have their side of the story heard. Employers should enter into this process with an open mind.
4. Failing to inform the employee that they may be dismissed as a result of the disciplinary process
Employees should be told prior to the disciplinary hearing what sanctions may be taken against them. In cases where the employer is considering dismissal, it should be specified that disciplinary action up to and including dismissal (whether summary or with notice) may be taken.
5. Failing to specify the reason for dismissal
Employees who are eligible to claim unfair dismissal are entitled to written reasons for dismissal. Employers should be careful to express the grounds on which the dismissal is being made; stating that an employee has been dismissed for misconduct when the only issues with the employee related to poor performance may render the dismissal unfair.
6. Failing to offer the right to be accompanied at a disciplinary hearing
All employees are entitled to bring a colleague or trade union representative with them to a disciplinary hearing. However, employees are not entitled to be accompanied by a legal representative unless disciplinary action will severely affect their ability to work again in their chosen profession (such as an allegation that would lead to a doctor losing their licence to practice medicine).
7. Offering a compromise agreement when there is no dispute
Employers sometimes prefer to avoid a disciplinary process and offer a compromise agreement to the employee to terminate their employment by mutual consent. However, if this option is raised before the disciplinary process has started, it may be deemed a breach of contract. This may also affect the fairness of any subsequent investigation or disciplinary process, as it may indicate an assumption of guilt.
8. Failing to conduct an appeal
After the decision has been taken to dismiss an employee, they must be notified of their right to appeal against the decision. A dismissal should be confirmed in writing and include details of how the dismissed employee can appeal, usually by providing their grounds of appeal in writing within a set period of time.
9. Using the same manager to consider the disciplinary hearing and the appeal
If the dismissed employee does appeal, a different (and preferably more senior) manager should conduct the appeal. In smaller organisations that do not have the resources to do this, efforts should be made to plan for who will conduct each stage of a disciplinary procedure. If there are no alternatives the same person or a subordinate may conduct the appeal. They should however confirm that they will consider the appeal as impartially as possible.
10. Failing to keep a written record
It is advised that a notetaker be present at each hearing to keep a written record. Where possible, the notes of the hearing should be agreed with the employee. This will assist the employer in the event that an employee makes a claim for unfair dismissal, as it will clearly indicate the steps taken by the employer to dismiss the employee fairly.
By avoiding these pitfalls, employers can feel more confident in their dismissal procedures and having a good defence to any subsequent unfair dismissal claim.
This article was first published as part of our Employment Law Update - April 2013. To subscribe, please email firstname.lastname@example.org.