Complex Summary Dismissal Scenario

[NorthWestACMA]

Apologies - I will try to keep this brief.

I am the MD of a medium sized venture (Limited Company) in the food service industry. We employ 12 members of staff. Recently I came into the business premises to find open warfare between staff members (particularly the manageress and one member of staff) with others extremely disturbed. I ascertained by interview there had been an instance of Gross Misconduct and Insubordination

Brief facts: Manager asked employee to do a task - employee ignores, manager responds with mild indignation and employee fires off a volley of f word insults. This tactic is then used to deflect attention from the employee to bring other members of staff into the situation (including one member of staff who was, at the time, suffering from extreme emotional tension after suffering a serious and sudden bereavement over the tragic death of her son).

My fellow director verified the facts by taking witness statements from 4 members of staff. A meeting was convened immediately and matters were discussed. The person was Summarily Dismissed failed to answer the accusation and marched out (having previously stated to staff he "was walking out") uttering the famous words "I'll see you at the Tribunal" ^

Further details: The person has been employed by THIS company for 7 months. However taking into account TUPE regulations his employment may be considered to be continuous for the region of 12-14 years (not exactly certain at this juncture, although the employee alleges nearly 40 years continual service (highly questionable since there were breaks in this timeframe, innumerable changes in the nature and companies (owned by one person) that employed him, and certainly one of the companies in this time was liquidated after going into receivership, I believe))

Subsequent to the Dismissal I have offered the individual the right to appeal (awaiting his decision) at a meeting which I would chair (as I was not party to the decision to Summarily Dismiss him - that being my fellow Directors' Decision) - offering him the right to bring a Witness. I have furnished him with the reasons and the supporting Witness Statements. I have received a Solicitor's Letter indicating his intention to seek an Employment Tribunal (no mention of Appeal which he obviously may (but shouldn't) reject.

I have indicated that, as far is possible, we have followed the ACAS Arbitration Model although you may wish to argue that he wasn't suspended. You might also want to know that (for the record) he had already been given a Verbal Warning (5 months ago, only 2 months into this new employment) for Insubordination and Poor Health and Hygiene management. Although not pertinent to this instance there is a historic catalogue of major and minor demeanours (including multiple Written and Verbal Warnings from his previous employer) and a series of verbal attacks on members of staff (for which he was warned), series of Hygiene and Health risk issues (warned) and much more beside (too numerous to mention)

So, I realise I have summarised as much as possible, I realise that nothing is perfect in the process but, threatening language (to his manager, other members of staff directly on the shop floor) and his recent refusal to work normally (late arrival, long absences) all point to a meticulously planned attempt to goad us into (a possibly inappropriate action). I fully intend to take this matter as far as necessary (ET if required), fully intend to defend our stance with further evidence and witness statements, all given freely by other members of staff) and protect the interests of the company and fellow employees.

For your information you should also note that we consider ourselves to be model employers. On hiring the staff we increased their pay (which was undercalculated), realigned their holiday pay (which was seriously mis-stated), provided absence leave for staff with problems, provided paid leave for the member of staff suffering from bereavement and more besides. I'm not sure how much more reasonable we might be but when you have one bad apple and open warfare between a member of staff who, on a daily basis, bullied (subtly - using whispered insults), failed in the execution of his duties (which he managed to do at a moderate level at best and sometimes worse), consistently undermined his manager on a daily basis and failed in his management of hygiene and health issues was there really any other option I (or my fellow director) could have taken*?

Thank you if you have read this far. All advise most welcome.

^ Most unlike this person, normally given to timorous and lacrymose reaction to criticism - on this occasion he was confident (to the point of a swagger).
* I have consulted Legal Advice, read and re-read ACAS and other advice sites to doubly check if there is anything I have missed.

 

"Manager asked employee to do a task"

Was the task in his terms of employment,job description e.t.c.

 

[Billmccallum]

sounds pretty clear cut to me, not sure if refusal to attend offer of an appeal interview will have a bearing on the ET.

 

[Newchodge]

sounds pretty clear cut to me, not sure if refusal to attend offer of an appeal interview will have a bearing on the ET.

It would have a bearing on any compensation won, but not on the case itself.

 

[NorthWestACMA]

"Manager asked employee to do a task"

Was the task in his terms of employment,job description e.t.c.

Certainly was. The member of staff was employed as an Assistant Food Prep. He was asked to go to the storeroom to collect some packaging. It is a task he would have done innumerable times. Essentially though there was, in the days leading up to this a strong indication he was neglecting his duties (an unexplained late arrival by 40 minutes which, when challenged by LM, offered no reason) and an unreasonable absence from duty (5-10 minute task outside the premises which "took" 40 minutes. Like I intimated earlier, should the matter proceed to ET, he had been warned previously for unprovoked attacks (threatening behaviour - calling a female colleague "a f...dic..d'). I was faced with a Manageress handing in her notice and at least 3 othrr members of staff on the point of walking out - I have tried to keep it brief!!

 

[NorthWestACMA]

I want to say that the employee was about to be offered the right to respond (to the point of asking him to not walk out) but he chose to walk out. He had stated (witnessed by staff) prior to Meeting "I am walking out" a clear and unequivocal premeditated action on his part. So we have GM and Insub. Dereliction of Duty and Refusal to Work...

 

[Charlie B ACS]

Reading into this, he was dismissed in his absence, after consideration of the evidence, having walked out of a disciplinary meeting, or did he just walk out & effectively resigned?

 

[Newchodge]

Was he given written notice of the meeting?
Was he given notice of what the meeting was for?
Was he told in advance what evidence was being considered?
Was he given the right to be accompanied to the meeting?

If not then there was no properly constituted disciplinary hearing and he should not have been dismissed in the absence of one.

"The person was Summarily Dismissed failed to answer the accusation and marched out"

If this was the sequence of events then I think you have a problem.

 

[NorthWestACMA]

Reading into this, he was dismissed in his absence, after consideration of the evidence, having walked out of a disciplinary meeting, or did he just walk out & effectively resigned?

He was present. He was told of the decision. He chose to only say "right I will see you at the tribunal" - although an attempt to convey his right to appeal was about to be made. I wouldn't say he was "restrained" but he wasn't encouraged to go.

WRT procedures I will answer that in response to the next comment.

 

[NorthWestACMA]

Was he given written notice of the meeting?
Was he given notice of what the meeting was for?
Was he told in advance what evidence was being considered?
Was he given the right to be accompanied to the meeting?

If not then there was no properly constituted disciplinary hearing and he should not have been dismissed in the absence of one.

"The person was Summarily Dismissed failed to answer the accusation and marched out"

If this was the sequence of events then I think you have a problem.

You need to differentiate between the appropriateness of the SD and any failings in procedure. I am aware of the imperfections in the process and any shortcomings in that area would be addressed by an ET in their summation. I will answer your questions however.

Wriiten Notice - No. He was informed that a meeting was being convened - given that I had 4 members of staff threatening to walk out (all of my remaining full time sales staff) immediate*action was required. No mention of the swiftness of the procedure was highlighted to me by my legal consultant.

Notice of the Intention if the Meeting - Yes (to discuss matters arising that morning). As a witness to proceedings I can tell you that the employee was not necessarily going to be SD)

He was accompanied at the meeting by a witness.

 

[Newchodge]

Immediate action is often necessary, but it is also important to consider matters coolly and impartially, which is why immediate suspension with pay would have been a better course of action. It gives everyone a chance to cool down (including the employee who appears to have been developing issues of some kind for a few days).

You have 2 bites at this at the tribunal - does the failure in proper procedure matter - if the outcome would have been the same in any event, then you have a defence. Secondly at the compensation phase, if you loose, what contribution to the dismissal did the employees behaviour make. In this case you would be arguing for 100% contribution and therefore 100% reduction in compensation.

 

[NorthWestACMA]

I appreciate imperfections have occurred. I also am grateful for responses. My fellow director and I have 20+ years business experience but (thankfully some might say) no prior experience of having to Dismiss someone.

I am expecting criticism for the Process but also seek confirmation that, assuming my version is accurate, that there is some agreement with the decision.

 

[NorthWestACMA]

I did indicate I was trying to be as brief as possible.

What else can I tell you?

He physically pushed past my co Director to get out - he couldn't get out quick enough

In other incidents - daily insubordination, bullying by verbal intimidation (swearing at female staff), refusal to carry out basic tasks properly, failure to clean hands after sneezing and going to the toilet (health and hygiene) - warned on an almost daily basis for one or more of these. We can only tolerate so much but open warfare on the shopfloor is a step too far. I know we can't take these decisions lightly otherwise I wouldn't be discussing it so candidly here.

 

[sjbeale]

If you followed the ACAS Code of Practice and have documented the procedure as far as possible then you have evidence to show an employment tribunal that you have tried to be fair and reasonable. You can bring the previous warnings into the equation if you get into the hearing.

If you need any advice on the employment tribunal procedure then I have a free guidance booklet that I can share with you. Please pm me.