It may seem obvious that if an employee commits an act of serious misconduct, such as theft or assaulting a colleague, then their dismissal would be fair (provided that there is evidence to support the allegation.)
However, unfair dismissal laws do not just look at the reason for the dismissal, they also take into account all of the circumstances surrounding it, including the procedure which has been followed. Therefore, an employee who is caught stealing and dismissed on the spot may have a claim based on the fact that a full investigation and disciplinary process was not followed.
Theresa Mimnagh, Associate Director at Lawspeed says: “In a conduct issue, an employer acting reasonably and fairly should make decisions based on an investigation and evidence and then allow an employee a fair opportunity to defend him/herself.
“In practice this will usually mean giving an employee notice of the allegation, providing any supporting evidence and inviting the employee, with reasonable notice, to a disciplinary meeting at which they can defend themselves.”
An employee should also have the right of appeal against disciplinary decisions. This procedure is set out in the ACAS code of practice and failure to follow the process can see compensation increased by up to 25%.
Employment tribunals do have powers to exercise some discretion and to apply a degree of common sense to a situation. For instance, a tribunal can reduce compensation on the basis that an individual contributed towards his/her own dismissal, or on the grounds that the employee would have been dismissed in any event, even if a proper process had been followed.
But these matters will only be addressed at compensation stage, after a finding of unfair dismissal and what could be a lengthy and costly tribunal process. If proper procedures are followed, a stronger approach can be taken when defending a claim. An employee may also be less likely to pursue the matter in the first place.
So, whatever the reason for dismissal, it is important not to overlook the proper procedures that need to be followed. Getting the right advice and following a proper process may take a few additional days but it can save significant time and money in the long run.