SAIF Golden Charter

The discipline of dismissal

Business Matters previously looked at disciplinary procedure and warnings but there are times when dismissal is the only option.

Employees with less than two years’ continuous employment do not have the right to make a claim to an employment tribunal that they have been unfairly dismissed but they can make a claim in special circumstances, such as a discrimination claim or a whistleblowing claim, so you should always seek advice if it is not straightforward. The first stage is an investigation and a disciplinary hearing (see March’s update).

Other agencies wishing you to put off investigating

If, say, there is a criminal investigation, the police may ask you not to investigate the matter. It is not necessary for you to follow this request, and indeed it may mean that your investigation will be held up and the outcome less certain due to fading memories.

Dismissal as an outcome of a disciplinary hearing

Section 98 of the Employment Rights Act 1996 states that there are five fair reasons for dismissal. These are conduct (including gross misconduct), capability (including ill health capability), redundancy, a statutory restriction (e.g. a driver losing his driving licence) or for some other substantial reason.

The first four are straightforward but there may be business reasons that lead you to dismiss an employee that don’t follow into the first four categories – for example, in a small business you may want to appoint a family member. If you do wish to use this reason, get advice if the person has more than two years’ service.

Letter confirming dismissal

This will state the allegations, the explanation and the decision. If it has come after warnings, the dates of these should be given. It may be, however, that the matter is so serious that it has gone straight to a first and final warning, and the date should be given for that. Unless it is a gross misconduct dismissal, notice should be given.

Gross misconduct dismissal

The letter will state the allegations, the explanation and that the matter is considered to be gross misconduct and that no notice will be given.

Alternatives to dismissal

(a) Demotion
(b) Transfer to another department or job if the contract allows this or the employee agrees
(c) Settlement agreement (previously called a compromise agreement).

Settlement agreement

There are sometimes good reasons to dismiss someone but there may be a risk that they will make a claim to an employment tribunal. You will need an advisor to draw up the agreement and advise you on how to approach the matter.

Because an employee who wishes to raise a claim at an employment tribunal must first inform ACAS as part of a statutory process, there will then be another opportunity to settle the claim with the help of ACAS.

Appeals

The employee should be informed if they have a right of appeal, who it is to and what the timescale is for appealing. For employees with less than two years’ service, they have no right to make a claim if there is no appeal.

There are benefits, however, to an appeal as it gives an opportunity for the employee to give you further information and an opportunity to correct matters if there has been a problem with the procedure you have adopted.

Effect of an appeal

The date of dismissal will be that given in the letter and the employee will not continue in employment during the appeal process. If the dismissal is overturned and the employee reinstated they will receive any wages they would have been due.

New evidence at appeal

If new compelling evidence is raised at the appeal, adjourn the hearing until it is investigated. The employee should be given the opportunity to see the outcome of this new investigation and called to another meeting.

Outcomes of appeal

The decision, which will be final, can be to:

(a)confirm the original decision
(b) revoke the original decision or
(c) substitute a different penalty.

This guide has been written by June Fraser of Beacon Workplace Law Ltd. Beacon offers high-quality, practical, fixed fee advice and representation. For more information, contact jf@beacon-law.co.uk