Dismissing an employee can be a tricky business and the correct procedures need to be followed.
The dismissal must be fair and can include reasons such as inappropriate behaviour or inability to do the job.
After one year of service, if the employee is unfairly dismissed they can make a claim for unfair dismissal. What may seem fair to even a reasonable employer can be found to be unfair if the correct procedures are not followed.
From 1st October 2004 employers are required to detail the dismissal and disciplinary procedures in writing and issue them to employees. The employees also need to be given the name of the person to whom they should apply if they are unhappy about a disciplinary, dismissal or grievance decision. Prior to 6 April 2009, the statutory dismissal and disciplinary procedures must be followed when contemplating dismissing an employee for one of the following reasons:
- redundancy – as long as there’s no obligation to consult collectively
- non-renewal of a fixed-term contract
- compulsory retirement
The statutory guidelines prior to 6 April 2009 provided for the following as a minimum for dealing with offences by employees…
- Minor offences – an oral warning should be given for these detailing the reasons for the warning and the improvement required. A note should still be made of the warning and kept on file for a reasonable period of time.
- Repeated minor offences and more serious offences – a written warning should be provided, detailing reasons for the warning and the improvement required. A copy should be kept on file for a longer period of time, perhaps a year.
- Further misconduct or a major offence – a final written warning should be provided making it clear that dismissal may follow if there is failure to comply. Again a copy should be kept on file, probably for a year.
At all stages the employee should be given a reasonable timescale to comply, informed of what the next stage in the disciplinary procedure will be if there is failure to comply and informed of their right of appeal. If there is no improvement then after the appropriate procedures have taken place, disciplinary action can be taken including dismissal with the appropriate notice. To warrant dismissal the misconduct must be extremely serious or repeated on more than one occasion.
However, from 6 April 2009 the statutory dismissal and disciplinary procedures are repealed in England, Scotland and Wales (but not Northern Ireland). This means that from that date, it is is no longer necessary to follow them when taking disciplinary action against an employee. Instead you have to follow a fair and reasonable procedure and are expected to follow the good practice advice set out in the revised ACAS code of practice. If you fail to do this and the issue goes to an employment tribunal, they could increase the employee’s compensation by up to 25%. Please note you can still follow the previous statutory guidance, although there is now no legal requirement to do so.
Gross misconduct Gross misconduct is the only situation which may lead to instant dismissal. Even then the employer should suspend the employee on full pay and carry out an investigation and give the employee a chance to explain their side. What constitutes gross misconduct can vary depending on the circumstances and employers should give plenty of examples of what they consider to be gross misconduct. Examples include…
- Violent behaviour
- Serious insubordination
- Use of alcohol or drugs at work
How We Can Help YouIf you need any more information on employee dismissal procedures, please contact us.