Before any employee is dismissed an employer must follow a procedure to ensure the dismissal is fair. The procedure to be followed is normally set out in writing by the employer. In the absence of anything in writing, a minimum procedure which must be followed by both employee and employer is set out in the ACAS Code of Practice. In the event of a successful tribunal claim, failure to follow the code by the employer can lead to an increase in compensation by up to 25%. Failure by the employee may reduce any compensation.
1 – The employer should investigate the issues
It is an important principle established in the case law of unfair dismissal that an employer should carry out a reasonable investigation which will involve gathering evidence not only from the employee in question but relevant witnesses and documentation. Paid suspension may be applicable while the investigation continues in cases of serious misconduct, though it should be made clear that this is not a disciplinary sanction.
2 – The employer should inform the employee of the allegations in writing
If there is a case to answer, the employee should be notified in writing of the alleged misconduct or poor performance and its possible consequences (including, where appropriate, the risk of dismissal) in sufficient detail to enable them to respond at a disciplinary hearing. Any written evidence, which may include witness statements, should be provided to the employee in advance of the hearing giving the employee reasonable time to prepare. The employee’s right to a companion should be stated. Both sides should state which witnesses they intend to call if any.
3 – There must be a disciplinary meeting or hearing
At the hearing the employer should explain the allegation and go through the evidence. The employee should be allowed to explain their position and refer to evidence provided by either side. Witnesses may be called as appropriate. The employee is also entitled to respond to questions. In some cases further investigation may be required arising from the meeting in which case an adjournment may be appropriate.
4 – The employer should inform the employee of the decision in writing
Following the hearing, the employer’s decision should be sent to the employee in writing without unreasonable delay. If misconduct or poor performance is established, a dismissal would usually only be appropriate if there has been a written warning and a final written warning unless gross misconduct is established.
Written warnings should set out the nature of the misconduct or poor performance, the improvement required, and the timescale for improvement. They should also specify how long they will remain current, and the consequences of further misconduct (or failure to improve) within that period.
5 – The employee has a right of appeal
If the employee disputes the outcome, they should appeal in writing, specifying the reasons.
The appeal should be heard without delay, by an impartial and where possible different manager, usually at a more senior level.
Again the employee has a right to be accompanied by a work colleague or trade union representative.
The outcome should be in writing.
In a constructive dismissal situation (see “Unfair Dismissal” situation) the employee should follow a grievance procedure before resigning and making a claim in the employment tribunal. In certain situations such as redundancies involving 20 or more employees there is an additional requirement of consultation with employee representatives.
Even if a procedure is followed, it must still be reasonable to dismiss an employee in all the circumstances, for example, it might not be reasonable to dismiss an employee for being late to work if no previous warnings had been given.