Fair Dismissal Procedures
As an employer, when you consider dismissing someone, it is not sufficient just to have a fair reason for the dismissal. You also need to carry out a fair procedure. Ultimately, you must be able to demonstrate that the dismissal was within the reasonable ranges of responses available to you. The ACAS Code of Conduct sets out some principles for fair disciplinary procedures but it does not apply to redundancy dismissals or the non-renewal of fixed term contracts on their expiry. If the employee has one year’s continuous employment – there are some limited exceptions to this rule -, the effect of failing to carry out a fair dismissal procedure could mean that you expose your company to the risk of an unfair dismissal claim being brought against it.
The key principle of a fair disciplinary procedure is to act consistently towards your employees and reasonably in the process that you follow. A fair procedure should include the following steps: -
- Investigation. This should be done without unreasonable delay to establish the facts of the case. Ideally, an investigation would involve holding an investigatory meeting with the employee before proceeding to any disciplinary hearing. Alternatively, the investigatory stage would involve collating evidence for use at any disciplinary hearing. Where possible, different people should carry out the investigation and the disciplinary hearing. Should you consider it necessary to suspend the employee on full pay, you should keep the suspension period as brief as possible and make it clear that the suspension itself is not considered disciplinary action.
- Inform the employee of the problem. If you decide that there is a disciplinary case to answer, you should notify the employee in writing and provide sufficient information about the alleged misconduct or poor performance and its possible consequences (i.e. the fact that disciplinary action may include dismissal if relevant) to enable the employee to prepare to respond at the disciplinary hearing. You should also provide copies of any written evidence with the letter and give details of the time and venue for the disciplinary meeting. You should also advise the employee of their right to be accompanied at the meeting – this is a legal right and an employee can bring a work colleague or a trade union representative (even if you do not recognise trade unions or the union that the employee is in) – see below.
- Hold a meeting with the employee to discuss the problem. A fair procedure means holding the meeting without unreasonable delay but allowing the employee reasonable time to prepare their case. At the meeting you should explain the complaint against the employee and go through the evidence that has been gathered. Fair procedure entails allowing the employee to set out their case and respond to any allegations that have been made against them. The employee should also be given a reasonable opportunity to ask questions, present evidence and potentially call relevant witnesses.
- Allow the employee to be accompanied at the meeting. Employees have the statutory right to be accompanied by either a trade union representative or a workplace colleague where the disciplinary meeting can result in a formal warning being issued or the taking of some other disciplinary action. This also includes appeal hearings.
- Decide on appropriate action. A fair disciplinary procedure involves making a considered decision after the meeting in relation to whether or not disciplinary or any other action is justified. A good tip is to ensure that you adjourn to consider all of the evidence before making your decision. You should then inform the employee of the outcome in writing. Any decision to dismiss should only be taken by a manager who has the authority to do so. In the outcome letter you should inform the employee as soon as possible of the reasons for the dismissal, the date on which their employment contract will end and the appropriate period of notice and their right of appeal.
- Provide employees with an opportunity to appeal. If the employee feels that the disciplinary action taken against them is wrong or unjust they should be provided with the right of appeal against the decision. A fair process involves hearing the appeal without unreasonable delay, ideally at an agreed time and place and consideration of the employee’s grounds of appeal which should have been provided in writing. Where possible, the appeal should be heard by a manager who has not previously been involved in the case and is more senior than the person who made the previous decision so that the appeal is dealt with impartially. Employees have the statutory right to be accompanied at appeal hearings. As with the disciplinary hearing, you should inform employees in writing of the results of the appeal hearing as soon as possible.
When deciding whether or not the dismissal is within the reasonable range of responses, it is prudent to consider the employee’s previous disciplinary record. It is usual practice to give the employee a written warning when their misconduct has been confirmed or the employee is found to be performing unsatisfactorily. Should the employee carry out a further act of misconduct or fail to improve his/her performance within a set period, this would normally result in a final written warning. In the situation where the employee’s first misconduct or unsatisfactory performance is sufficiently serious, you may decide that it is appropriate to move directly to a final written warning. This would be a reasonable response where the employee’s actions have had, or are liable to have, a serious or harmful impact on the organisation.
Regardless of whether you give a first or final written warning, it should set out the nature of the misconduct or poor performance and specifically set out the improvement in behaviour or performance that is required and the timescale within which this must occur. A fair procedure entails advising the employee how long the warning will remain current on their disciplinary file and informing them of the consequences (such as dismissal or demotion) of further misconduct, or failure to improve performance. You may consider that some acts are so serious in themselves (theft, fraud, physical violence, gross negligence or serious insubordination) or have such serious consequences that they should result in dismissal without notice for a first offence. These acts are referred to as gross misconduct and such a dismissal would be within the range of reasonable responses provided a fair disciplinary process has been followed before dismissing the employee.
Provided you as the employer follow the above principles, ensure you have a genuine belief that the act or acts complained of have taken place and that genuine belief is based upon a reasonable investigation in the circumstances, and act consistently towards your employees, you should have acted procedurally fairly.