What process should employers follow to avoid unfair dismissal?

  1. Employee dismissal
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    Nicola Mullineux

    Nicola Mullineux Contributor, Peninsula Business Services Full Member - Verified Business

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    Every employer should have a disciplinary procedure implemented in their workplace. A full, well drafted disciplinary procedure can be a good measure in preventing employees from committing acts of misconduct.

    A disciplinary procedure should be communicated to all employees, so that they are aware of its contents and ramifications if they are found to have carried out the alleged act of misconduct.

    All managers should also be aware of the steps of the disciplinary procedure and they should comply with it to ensure a procedurally fair disciplinary every time. If the outcome of a disciplinary is a dismissal and the employer or manager conducting it has not adhered to the policy they might be open to a claim of procedurally unfair dismissal or wrongful dismissal.

    Steps to follow after an alleged misconduct

    When you learn of an alleged misconduct, there are a number of steps which you should carry out as part of a fair disciplinary procedure.

    Firstly, you should decide whether there is an issue to investigate. If you reasonably believe that the allegation is false, then there is no need to investigate and the matter can be closed. However, if you don’t, then it is best to speak to the person who has brought the allegation to find out more information.

    Conducting an investigation

    Once you have a better understanding of what exactly they are alleging, you should speak to the alleged perpetrator. Once you have decided that the issue should be addressed under your formal disciplinary procedure, you should conduct an investigation.

    The investigation should be reasonable – this means it should be as extensive as necessary to allow you to reach a reasonable conclusion. An investigation can involve different steps depending on the allegation. You may have to look at CCTV footage, documentation, speak to witnesses and the alleged perpetrator.

    As part of your investigation, you may choose to invite the employee to an investigatory meeting. Choose a quiet, private location and make sure you allow enough time to for the meeting, so that it does not feel rushed.

    Use this investigatory meeting to clarify the facts. If the employee admits the misconduct then that may be sufficient evidence to use in the disciplinary hearing. During the investigatory process, remember to speak to any witnesses and if there are any ask them to write and sign a witness statement.

    Following an investigation

    Once you have conducted a reasonable investigation and have gathered sufficient evidence, the next thing you should do is invite the employee to a disciplinary hearing. Make sure the invite contains details on the allegations and specific time and dates of the alleged misconduct. It is important to include the possible outcomes of the disciplinary procedure in this letter so that the employee is able to understand the severity of the matter.

    At the disciplinary hearing you should allow the employee to put their case forward and offer any mitigating circumstances. They also have the right to be accompanied by a colleague or a trade union official. When deciding the outcome you should take into account all the evidence, witness statements and mitigation before you.

    Give the outcome of the disciplinary in writing and specify how long this will be kept on the employee’s personnel file if it is a sanction short of dismissal. If you have taken the decision to dismiss the employee, remember that unless it is a summary dismissal, you should give the employee the correct notice due to them or pay them in lieu of notice if there is a contractual clause which allows for this.

    If you reasonably believe that the employee is guilty of gross misconduct then you may fairly dismiss them without notice with immediate effect. However, keep in mind that gross misconduct dismissals are rare and only warranted that very serious misconduct which goes to the heart of the contract.

    To achieve a fair dismissal, you should:

    • Have a genuine belief that the employee carried out the misconduct
    • Have reasonable grounds for that belief
    • Have carried out a thorough investigation that was reasonable in the circumstances