Dismissing For Misconduct
It is extraordinary how many employers continue to have to pay awards due to procedural errors when dismissing an employee for misconduct. The principles of fair procedures and natural justice are broad concepts which have been refined by case law but which vary from situation to situation. Nevertheless, in claims for unfair dismissal involving misconduct, the Employment Appeals Tribunal expects employers to be meticulous in adhering to these concepts. This may be a tall order for employers, particularly where the employee’s conduct has damaged the relationship of trust and confidence between the employer and employee.
Some questions that may be useful for employers to assist keeping in line with the concepts of fair procedures and natural justice:
- Is the investigation confined to establishing the facts without making findings?
- Is it necessary to suspend the employee in the circumstances and is it set out that the suspension is not a disciplinary sanction but to facilitate the investigation?
- Has the employee been giving the outcome of the investigation in writing?
- Does the invitation to a disciplinary hearing include:
- Details of the allegations the subject of the disciplinary process
- Name of individual conducting the disciplinary hearing together with name of note-taker
- Statement that disciplinary sanction, if any, may be up to and including dismissal
- Reminder to employee that he/she has the right to be accompanied/represented by a colleague or trade union representative (depending on the working in the disciplinary policy)
- Requests the employee to name anyone who he/she wishes to question
- Extends the employee’s suspension to facilitate the disciplinary process
- Attaches all the relevant documents together with the disciplinary policy
- Gives the employee the opportunity to view CCTV footage where applicable.
- Has the employee been given sufficient time to prepare for the disciplinary hearing?
- Is the person conducting the disciplinary hearing impartial?
- Has the decision maker taken enough time to properly consider everything that was said at the disciplinary hearing before reaching a decision?
- Does there need to be any follow ups on what was said at the disciplinary hearing?
- Has the decision been made applying the standard of balance of probabilities based on all the facts?
- Have lesser disciplinary sanctions been considered?
- Does the dismissal letter:
- reflect what was said at the disciplinary hearing
- decide on conflicting statements
- illustrate that the decision was not pre-determined
- state whether or not he/she is required to work notice (if no summarily dismissed)
- remind employee of right to appeal – in writing, within a set number of days
- states that an appeal will not change the date of dismissal but if successful the employee will be re-instated
- Is the person hearing the appeal more senior then the person who made the decision to dismiss?
- Is that person impartial?
- Has the employee been informed of the appeal procedure?
- Is the outcome of the appeal in writing, reflects what was put forward in the appeal and illustrates that the appeal was not pre-determined?
Employers should also be mindful that employees attempt to derail the process by either going on sick leave or submitting a grievance. Broadly speaking as regards the former issue, the employee should be examined by the company doctor to determine whether he/she is fit to work and/or participate in a disciplinary process. A grievance, however, should be dealt with separately and should not delay or interfere with the disciplinary process.
Due to the potential reputational damage to employees dismissed for misconduct, employers are expected to literally jump through procedural hoops before dismissing employees for misconduct and are expected to demonstrate as such bearing in mind that it is up to the employer to prove that the dismissal was fair.