Dismissal – always follow the correct process
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.
Adrian, a highly experienced lawyer, founded Lawspeed in 1997. He is responsible for developing our extensive portfolio of products and services, including the widely used Lawspeed contract templates. Adrian is an expert on “recruitment law” and specialises in contracts, regulatory compliance, employment status and dispute handling. He is chair of the trade body the Association of Recruitment Consultancies, the only lawyer lead recruitment trade body in the UK. Adrian and his co-director Ravi devised Standards in Recruitment as a vehicle for helping drive up standards and compliance in the industry.
Adrian is our lead in discussions with the government over regulatory evolution. Apart from assisting with client support, Adrian’s primary role is research and development into methods of business delivery, our latest service Proterms being his most recent project. Adrian heads our IR35 lawyers team.