Disciplining and Dismissing Employees
Most employers will, at some stage, have to deal with misconduct by a member of staff.
In such circumstances, it is necessary to ensure that a full and fair procedure is followed. The risk of not following a full and fair procedure would almost inevitably be considered to be an unfair dismissal by an Employment Tribunal, this is subject to the individual satisfying the eligibility criteria for bringing an unfair dismissal claim which, as at June 2019 is two years complete service.
The principles of fairness are set out in “ACAS Code of Practice on Disciplinary and Grievance Procedures” (“ACAS Code”) and the accompanying non-statutory guide, “Discipline and Grievances at Work”. In addition to following as a minimum, the ACAS of Practice, an employer to dismiss fairly will need to identify the statutory fair reason for dismissal which are:-
- capability or qualifications
- breach of a statutory duty or restriction
- Some Other Substantial Reason (“SOSR”)
When going through a disciplinary procedure, employers must also be mindful that issues raised in investigations and hearings can give rise to other claims, ie. the employee may claim they have a protected characteristic and that the employer should have made reasonable adjustments, either in relation to ameliorating the alleged misconduct itself or in the conduct of the disciplinary process.
Following a full investigation and disciplinary hearing in accordance with the ACAS Code, if in the first instance the investigating officer has recommended that the matter proceed to a disciplinary hearing and then the disciplinary officer or panel when hearing the alleged misconduct comes to the decision that the employee is “guilty” of the alleged misconduct, then the disciplining officer must then go on to consider what is the appropriate sanction and whether or not there are any mitigating circumstances.
If the decision is taken to dismiss, the employee should be informed in writing of the reason for the dismissal and given the opportunity to appeal the decision to another, or better still, a more senior, manager. An appeal can either be a re-run of the disciplinary or it can be a review of the decision under the ACAS Code. Once the appeal decision has been informed to the employee, that is the end of the internal process.
If an employee is dismissed and appeals, that does not extend their length of time to issue a claim, however, subsequently if the appeal is overturned, they will have continuity of service.
If you need help ensuring that your Disciplining or Dismissal processes are in line with legal guidelines, call our Employment Law team today on 0161 785 3500.