Disciplinary and Dismissal

There are five legally fair reasons for dismissing an employee and these are set out in section 98 of The Employment Rights Act 1996. They include:

• conduct,
• capability,
• redundancy,
• breach of a statutory restriction (such as no longer having a right to work in the UK), and
• "Some other substantial reason" (this is not a catch all, but is simply meant to allow for flexibility in real commercial situations, such as a restructuring which does not fall within the definition of redundancy).

Once an employee has over two years of service it is necessary to follow the ACAS Code of Practice to dismiss. Failure may result in a successful unfair dismissal claim (on procedural grounds alone).

Fair Disciplinary/Dismissal Procedure
In order for a dismissal to be fair the following procedure needs to be followed (in accordance with the ACAS code of practice):

• Investigate the issues.
• Inform the employee of the issues in writing.
• Conduct a disciplinary hearing (by a different person than the investigating officer) and meeting with the employee who has a right to be accompanied by a work colleague or trade union representative.
• Inform the employee of the decision in writing.
• Provide the employee with a right of appeal.

Separating Conduct and Capability Concerns
Employers often get themselves in a muddle when dealing with the ACAS code as they confuse misconduct and capability. These two issues are quite separate:

Misconduct relates to acts that evidence that the employee has willfully acted in a way contrary to the employment relationship. Acts include persistent lateness, harassing an employee, failing to follow reasonable orders, fighting and being drunk at work.

Capability/Performance is quite difference as this is performance linked and relates to an employee’s inability to perform his/her role. This may be related to poor health or simply because the job role has evolved and the employee is unable to perform the role required of him/her.

1. Misconduct Stages:

Investigation
Investigation will involve gathering evidence of poor behaviours/conduct.

Misconduct Sanction
If the misconduct is minor/a first act then a first written warning is probably all that should be provided (following the necessary procedure), however more serious offences or repeated minor offences may lead to final written warnings and very serious offence such as such as swearing at a line manager, or being physically threatening to a customer or supplier or attending drunk may result in instant dismissal even for a first offence.

What is perhaps more confusing is when there have been repeated conduct breaches but for different things. If there is a persistent lateness issue and this is repeated over and over again, it is obvious that escalating sanctions are appropriate, it should be remembered that varying offences can have a cumulative affect and be evidence of a fair escalation of sanctions. The key concern for the employer is to ensure the paper trail is clear and the decision of sanction (of whatever level) can be justified as “reasonable” and within the “band of reasonable responses”.

The Process
An employee should be invited to a meeting, informed of his/her right to bring a companion and should be informed in advance of the meeting the possible sanctions that may apply.

A meeting should then take place and the employee should be invited to comment on the allegations. After the meeting a decision about the appropriate sanction should be made and communicated to the employee in writing.  The employee should be provided an opportunity to appeal.

2. Capability/Performance Stages:

Investigation
For poor performance the investigation stage will involve collating data about what elements of the role the employee is unable to perform. 

The Appropriate Sanction – Escalating
In performance cases the decision to provide sanctions should also be accompanied by an improvement note, explaining the exact standards expected of the employee and often include training programs and other assistance. Further, weekly informal meetings should take place in-between formal meetings to regularly assess progress made by the employee.

In the case of poor performance, once the formal process has been invoked, it is necessary to escalate levels of warnings before dismissal may fairly take effect. First written warnings will be followed by a final and then dismissal may be justified. The process between each warning should be a minimum of one month and weekly informal meetings should also take place alongside the formal process (including rights of appeal).

Disclaimer: This article does not contain a full statement of the law and it does not constitute legal advice. Please contact the Employment Law Team on 020 3743 0600 if you have any questions about the information set out above.