You’re Fired – NOT!
Sacking an employee is not done Donald Trump or Lord Sugar style. Even on grounds of gross misconduct that preclude the need to give notice employers should follow standard procedures.
Dismissing an Employee
There are a number of reasons an employer may need to dismiss an employee. Reasons such as underperformance, capability, or misconduct. Or less personal reasons such as Redundancy or TUPE. There are other reasons that would be considered as a fair would fall under “some other substantial reason”.
Whether an employer must conduct a disciplinary process will depend on the employee’s length of service and the process outlined in the employer’s disciplinary policy or contract of employment.
In general, unless the employee has been employed continuously for 24 months, they are unable to make a claim at an employment tribunal for “unfair dismissal”1. So, unless the employee has recently raised a grievance, or has a protected characteristic, it is generally straightforward to dismiss.
Where an employer is required to engage in the disciplinary process, we suggest the ACAS guidelines2 for assistance. To summarise, the process should include:
Investigation – To establish the facts and collect evidence. It may be appropriate to suspend an employee whilst this stage is being carried out. When considering suspension it is important to consider whether the employee is likely to be a danger to the business or whether they are likely to attempt to sabotage investigations.
Invitation – Set out the issues in writing to the employee and confirm the allegation and evidence against them within the disciplinary invitation. It would be wise to ensure that the potential outcomes of the hearing are included.
Hearing – Hold the disciplinary hearing, ensure that the employee is given reasonable time to prepare, allow the employee to be accompanied by either a work colleague or a Trade Union Representative and allow the employee to answer the allegation and evidence that has been put to them. The employee should also be offered the opportunity to put forward relevant information for the panel to consider including any further investigation that may need to be carried out.
Outcome – An appropriate decision should be made based on the allegations, evidence and the employee’s response to the case. DLP recommend that the decision is communicated in writing. The outcome should detail the procedure for appeal. In the event of an appeal, an impartial and objective appeal panel show be assembled.
Dismissal within probationary period or under 24 months
An employer may not be required to proceed to a disciplinary hearing if the employee’s length of service is within their probationary period or under 24 months of continuous employment. However, a meeting should be held with the employee and they should be provided with the opportunity to have a witness present.
The employee should be informed that their employment is being terminated along with the notice they are being provided dependent on their length of service or contract of employment and how and when their final salary including any accrued and untaken holidays will be paid.
Finally, the employee should also be provided with a written confirmation of the termination and this should also include relevant details of the appeals process.
Employees are entitled to one week of statutory notice after continuous employment of one month and up to two years. After 24 months service, two weeks statutory notice is required with an additional week of notice for each additional year of employment—up to a maximum of twelve weeks.
1 – http://www.legislation.gov.uk/ukpga/1996/18/contents
2 – http://www.acas.org.uk/index.aspx?articleid=1797