What is the correct dismissal process?


The Acas Code of Practice applies to dismissals for misconduct and will be taken into account by tribunals when deciding whether a dismissal is fair. An adjustment of up to 25% may be made to the compensatory award for an unreasonable failure to comply with the Code.

According to the Acas Code, before dismissing for misconduct, an employer should:

  • Investigate the issues.
  • Inform the employee of the issues in writing.
  • Conduct a disciplinary hearing or meeting with the employee.
  • Inform the employee of the decision in writing.
  • Give the employee a right of appeal.

Furthermore, a dismissal for misconduct will only be fair if, at the time of dismissal:

  • The employer believed the employee to be guilty of misconduct.
  • The employer had reasonable grounds for believing that the employee was guilty of that misconduct.
  • At the time it held that belief, it had carried out as much investigation as was reasonable.

Even if an investigation had been conducted, a tribunal would then ask whether an employer had acted within the band of reasonable responses in treating the misconduct as a sufficient reason to dismiss, which will naturally depend on the circumstances. These include, but are not limited to, the following:

-A dismissal will not necessarily be fair just because the misconduct in question is listed in the employer’s disciplinary policy/contractual documentation as something that warrants dismissal.

– Has an employer failed to set out or make clear the standards of conduct and performance expected of employees in respect of the matter for which he/she is being disciplined?

– In the absence of a policy (and even if a policy existed), can the employer demonstrate that it has been applied consistently and fairly?  For example, there may instances where emails which could be considered offensive have been commonly circulated in the office and no previous disciplinary action has flowed from this.

Click here for the main dismissal page.

Click here for the unfair dismissal page.

Click here for the gross misconduct page.

 

For further advice and a free consultation, please get in contact on 020 7100 5256 and ask to speak to Philip Landau or any member of the employment team, or email us.

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