Employment Law Newsletters December 2019

This month's newsletter focusses on unfair dismissal and how to properly handle the disciplinary procedure.

In most cases, an employee cannot claim unfair dismissal until he or she has more than two years’ continuous service. There are some exceptions to that where an employee is dismissed for one of a few specific reasons, the most common being pregnancy, whistleblowing or trade union activities. But generally, managers have two years during which they can dismiss employees for pretty much any reason unless it's also discriminatory.

An employer doesn't need to actually utter the words 'You're dismissed' for the employee to have an unfair dismissal claim. If the employer behaves sufficiently badly that the trust and confidence between employee and employee is seriously damaged, the employee can resign and claim unfair dismissal (constructive dismissal).

A dismissal will be fair if the reason for it was one of the five potentially fair reasons (conduct, capability, redundancy, breach of a statutory provision, SOSR) and in all the circumstances the employer acted reasonably in treating that reason as sufficient for dismissal.

An employee can bring a claim for unfair dismissal in the employment tribunal. The tribunal will look at whether the employer followed a fair procedure and whether dismissal was a reasonable sanction.

An employer must follow a fair procedure when dismissing an employee. This includes following the ACAS Code of practice which sets out the basic requirements of a fair dismissal. There is a copy of the ACAS Code at the back of the Employee Investigations book. The ACAS Code is not legally binding, but a tribunal will use it to judge fairness.

Did the employer’s decision to dismiss fall within the range of reasonable responses? A tribunal will look at whether an employer could reasonably think that dismissal was the right sanction, rather than deciding whether it, itself, would have dismissed in those circumstances.

Tim Lang

Should you suspend?

If the conduct is potential gross misconduct, then it's usually appropriate to suspend the employee pending the disciplinary hearing and outcome. Or if there is a good reason to keep the employee out the workplace.

Be careful not to suspend unless you have reasonable grounds for doing so – suspension carries a stigma, despite every suspension always saying it's a neutral act, and an unjustified suspension can be a breach of trust and confidence.

NB The employee should receive full pay during that period, and the period of suspension should be as short as possible and kept under review.

Sending a Disciplinary Letter

The law says that the letter must contain enough information about the allegations of misconduct and its possible consequences, to enable the employee to prepare to answer the case at a disciplinary hearing. Normally you should provide copies of any written evidence, including any witness statements with the letter. The letter should give the time and venue for the meeting. In the letter, you should tell the employee of their right to be accompanied at the meeting.

It is really important that you are specific about the allegations. Don’t make vague references to a breach of policy. If the employee is suspected of dishonesty – say so. Imprecise allegations cause much more of a problem where the allegations are complex, or where there is dishonesty involved.

For example in a recent case, a manager of a shop was suspected of stealing stock, but the allegation referred to 'missing' stock – which was equally consistent with carelessness as dishonesty. Because the employee didn't realise she was being accused of stealing, it turned out to be an unfair dismissal. The important message is don't mince words – if you think someone has stolen but you don't want to use words like 'theft', 'dishonest', 'fraud', you're going to find yourself struggling to justify the procedure.

Top Tips for Conducting a disciplinary

  1. You should allow the employee reasonable time to prepare their case.
  2. Prepare for the meeting. Have everything ready in advance.  
  3. At the meeting explain the disciplinary allegations to the employee and go through the evidence that has been gathered.
  4. Allow the employee set out their case and answer any allegations that have been made.
  5. Resist the urge to argue with the employee
  6. The employee should be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses.
  7. However, they don’t have the right to ‘cross-examine’ witnesses.

Where an employee is persistently unable or unwilling to attend a disciplinary hearing without good cause, then you can make a decision on the evidence available. However, you have to give them at least two opportunities, particularly if they have a disability or are off sick.

Right to be Accompanied

Employees have a legal right to be accompanied at a disciplinary meeting which could result in:

• A formal warning being issued;
• The taking of some other disciplinary action; or
• An appeal hearing.

They are entitled to be accompanied by a colleague, a trade union representative, or an official employed by a trade union who is certified by the union as competent to accompany a worker.

If the companion is not available at the time proposed for the hearing, you must postpone the hearing to a time proposed by the employee, provided that the alternative time is both reasonable and not more than 5 working days’ after the date originally proposed.

The companion should be allowed to talk at the hearing to put and sum up the employee’s case, respond on behalf of the employee to any views expressed at the meeting. The companion is allowed to confer with the employee during the hearing. However the companion cannot answer questions on the employee’s behalf.

Making the Decision

Here's the process you need to go through when taking a decision on dismissal. After the meeting, you need to decide whether disciplinary action is justified. You should think about all the evidence you have heard. If you need to investigate matters further as a result of anything that the employee has raised during the hearing, then you should do this.

The standard of proof is not like in criminal cases. You must simply have a reasonable belief, on reasonable grounds, following a reasonable investigation. Ask yourself, “What is more likely than not to be the truth based on the evidence?”

Six factors.

1. You should look at the company’s disciplinary rules to help you with this. These contain examples of conduct which might merit a first or final written warning or could amount to gross misconduct entitling you to dismiss.

2. You may find it helpful to discuss this with HR, but it should be your decision.

3. Be consistent - When you are thinking about the sanction remember to take into account how the company has dealt with other similar behaviour.

4. Mitigation – Think about what the employee has said in mitigation. Has the employee admitted to the behaviour and apologised? Do you think it will happen again or has the employee learned from this? How long has he/she worked for you? Has the employee got a clean disciplinary record or are there live warnings on file? Has he/she done this sort of thing before?

5. Is there another sanction which can be given to avoid dismissal? For example, a final written warning, demotion or training? A tribunal will expect you to have considered all these things – even if ultimately you discount them.

6. Keep a written note of the reason why a lesser decision wouldn't work. Important when it comes to being cross-examined. If you can't think of a reason why a warning wouldn't be sufficient, you might be struggling later if you're cross-examined over why dismissal was justified.

Informing the Employee of the Decision

Once the decision has been made, then you should write to the employee to tell them of the decision. If they're still at work (and not on suspension), you would normally call them to another meeting to tell them of the decision too. You should specify reasons for the decision and address any points raised by the employee during the hearing. You should also enclose copies of the notes of the hearing

Confirm their right of appeal, explaining who to write to and within what time period.

And Finally, the Appeal...

The appeal hearer should not be the same person who made the disciplinary decision and should be someone more senior. If possible, the appeal officer should not have been involved at all up until that point.

The employee should be invited to an appeal hearing which should be held without unreasonable delay. Employees should let you know the grounds for appeal in writing. As before, employees have the right to be accompanied and heard at the hearing. The appeal can be a review or a rehearing. Once the appeal decision has been made, you should inform the employee in writing of the results.