If an employee commits an act of serious misconduct (such as theft, or assault), and there is compelling evidence to support the allegation, most people would consider dismissal to be a fair outcome. However this is not necessarily true, as unfair dismissal laws do not just look at the reason for the dismissal:
Employment tribunals take into account all of the circumstances, including the procedure that has been followed, in determining whether a dismissal is fair or not.
So, an employee who is caught stealing and dismissed on the spot may still have a claim, based on the fact that a full investigation and disciplinary process has not been followed. Unfair dismissal laws are designed to protect employees, and to ensure they are treated fairly in any decision where they could lose their job.
In a conduct issue, an employer acting reasonably and fairly should make decisions based on an investigation and available evidence, and allow an employee a fair opportunity to defend themselves. In reality this will usually mean giving an employee notice of the allegation, any supporting evidence and inviting the employee, with reasonable notice, to a disciplinary meeting at which the employee has the opportunity to explain or defend himself. An employee should also have right of appeal against disciplinary decisions.
Any failure to follow the process may see compensation increased by up to 25%.
The procedures are all set out in the ACAS code of practice. Employment tribunals do have powers to exercise some discretion and apply a degree of common sense to a situation; the tribunal can reduce compensation on the basis that an individual contributed towards their own dismissal, or on the grounds that the employee would have been dismissed in any event had a proper process been followed. However, these are matters to be addressed at the compensation stage, after a finding of unfair dismissal in what is likely to have been a lengthy and costly tribunal process.
If the proper procedures are followed at the beginning, a stronger approach can be taken in defending a claim.
An employee and/or any legal advisers may also be less likely to pursue the matter in the first place. Therefore, whilst the reason for a dismissal is significant, it is important not to overlook the due proper processes towards that decision. Obtaining the right legal advice and following a proper process may take a few additional days, but will result in a considerable saving on tribunal time and costs.
If you are experiencing any of these issues, contact Theresa Mimnagh of the Lawspeed Employment team for expert guidance and comprehensive legal support on 01273 236 236.