Following an incident where staff were fired by email, Sam Murray-Hinde of law firm Howard Kennedy details the way a fair dismissal should be carried out
Reports have recently been plastered all over the internet of the bus company boss who announced his departure and sacked his staff in a fiery email. While that is certainly one way to get rid of staff, most operators are aware of the potential consequences of such a gung-ho approach to dismissal.
Employee’s rights
Employees attain the right not to be unfairly dismissed after two years' continuous service, save in circumstances where they can show that the dismissal was automatically unfair (e.g. where the dismissal is shown to have been for an inadmissible reason, such as trade union activities, the making of a health and safety complaint, or whistleblowing).
For a fair dismissal, you must be able to show one of five specific reasons for dismissal. These include conduct, capability, redundancy, or something that prevents the employee from doing their job legally – such as a driver losing their driving license. Save for those, the dismissal must otherwise be for a 'substantial reason'.
You must also act reasonably and follow a fair procedure that will include conducting a proper investigation, allowing the employee to be accompanied and offering a right of appeal.
It is important to differentiate between cases of capability (incapable of doing a job to a required standard) and conduct (capable, but unwilling).
Capability cases may require a more positive approach, in terms of a progressive disciplinary process involving support, training and regular reviews.
Plan and investigate
For misconduct cases, here are some top tips to avoid common pitfalls:
• Conduct as thorough an investigation as possible, particularly where the allegation is serious
• Do not suspend as a knee-jerk reaction. Where it is justified, suspension is a neutral act and should be on full pay
• Comply with the ACAS Code on Disciplinary and Grievance Procedures as a minimum, in addition to any internal disciplinary procedure.
The letter instructing the employee to attend a disciplinary hearing should:
- Clearly set out the allegation. The dismissing manager can only consider that allegation so it should be carefully drafted. If need be, break it down into sub-sections so that findings can be made in relation to each part
- State that the allegation, if proved, could be deemed to be gross misconduct, if this is the case
- Set out the sanctions open to the dismissing manager should the allegation be proved, particularly where dismissal, including summary dismissal, is a possibility. If the employee has live warnings for similar conduct on record which could affect sanction, these should be highlighted
- Set out the right to be accompanied by a union representative or workplace colleague
- Enclose all relevant evidence to enable the employee to properly prepare.
If the allegation is proved and found to constitute gross misconduct, consider whether dismissal is reasonable in all the circumstances. There may be mitigating factors that lead you to consider a lesser sanction, to include length of service and prior disciplinary record.
• Ensure the letter confirming the decision adequately sets out the reasoning, particularly where the employee is dismissed
• Finally, ensure consistency in decision-making.
