The decision to dismiss an employee and how this is carried out should not be taken lightly by an employer. If it is necessary for you to dismiss an employee for any reason, it is important that you seek legal advice to ensure that the procedure you follow is correct. Any failure to follow the correct procedure can lead to an unfair dismissal which can have expensive ramifications.
In order to dismiss an employee, the burden of proof only needs to be a reasonable belief that the employee has acted in a manner which amounts to a fundamental breach of their contract, such as gross misconduct. It is, however, important that any allegations of such a breach are investigated in a fair manner. This can include ensuring that the employee is given the opportunity to give their version of events and that they are given the opportunity to respond to the allegations made against them. Those investigating the allegation should not be witnesses to the alleged conduct, even though this may mean involving an external HR provider. Records of any investigations should be kept, and the employee should be invited to be accompanied at any disciplinary hearing.
So what amounts to gross misconduct? A list of actions of gross misconduct can often be found in the staff handbook or contract of employment. It would usually be an act such as theft, fraud, physical violence, serious negligence or a breach of health and safety regulations.
An employer is entitled to suspend an employee pending an investigation. However, any investigations should be carried out promptly. An investigation may, after all conclude that the employee has done nothing wrong and that they may return to work. If evidence suggests that an act of wrong doing has been carried out, then the employer should follow its Grievance and Disciplinary procedure. Absent such a procedure, the ACAS Discipline and Grievance Code of Practice should be adhered to. Failure by the employer to conduct their processes in line with the minimum requirements could increase any award of damages by up to 25%.
In the event that an employer dismisses the employee without having collated all of the evidence first then dismissal may well be unfair even if supporting evidence comes to light after the dismissal. In these circumstances, the employer may be able to seek a reduction in any potential damages under ‘Polkey’ principles. A leading case on contributory fault in employment law.
Whether you are an employee or an employer, for advice in connection with employment law matters contact us on 0161 641 4555 or email James O’Donnell at james@odonnellsolicitors.co.uk.
