Discipline and dismissal

Did you know that there are five acceptable and fair reasons for dismissing employees? 'As many as that' we hear you say! As is always the case, however, with employment law, there is a 'but' to each of the five reasons in order for them to be fair. Employment Tribunals test dismissal decisions in two ways. The first test is did the employer behave reasonably? The second is whether or not you followed the correct procedure. It is essential that you are aware of which reason you are using for dismissals as each of the five acceptable reasons carries a different procedure. The employer needs to pass both tests for the decision to be a fair one. Even with an employee with under two years' service, a simplified procedure still needs to be followed to avoid a 25% award uplift in a successful discrimination claim.

“Thank you for the efforts you have gone to for us with this appeal. I wouldn't have known where to start.”

A lot of employers won't deal with performance or conduct issues because they think employment law is too heavily weighted towards the employee and therefore it will cost them a lot of money. It doesn't have to be that way. Employers are entitled to expect employees to behave in an acceptable manner and perform to the standards required. If they don't, the employer does not have to put up with the issue. With the right sort of support on your side, addressing issues with difficult employees is not something about which any employer needs to be frightened.

Case Study

A manager at one of our clients suspended an employee for an issue which was serious enough for dismissal to be considered. The manager spoke to us about the process for suspension pending an investigation and an appropriate suspension confirmation letter , which we supplied. Some three weeks later the manager rang us to say that he had "forgotten" that the individual was still on suspension (he had become sidetracked with other matters) and that he wished to bring the matter to a conclusion. We advised him again that an investigation into what had happened needed to be carried out and advised that if he wished to chair the decision meeting, someone else needed to do the investigation. This was to show impartiality in the process, as required by the legislation when handling disciplinary/dismissal processes. The manager conducted the investigation and then told us that he was going to hold the decision meeting too. Again, we advised that this was incorrect, but he decided to chair the meeting as well as having conducted the investigation. We supported him with setting up the meeting s it was his prerogative not to take our advice.

The morning of the meeting we received a frantic telephone call from the manager saying that the employee had brought a trade union representative with him and he had asked why the manager was conducting the hearing when he had also carried out the investigation. In his view the process was flawed. We advised him again that in fact someone else should have been conducting this meeting and that we felt he should adjourn the meeting and rearrange it with someone other than him conducting the decision meeting to demonstrate impartiality.

The result? The manager finally listened to what we had to say and adjourned the meeting. The meeting was rearranged for a different manager to hear it and the employee and his trade union representative both attended the second meeting. That manager reached the conclusion that dismissal was appropriate and the employee was dismissed. There was no appeal against either the decision or the process and the matter was successfully concluded, without recourse to an Employment Tribunal being required.

Employment Contracts and Dismissals
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