Posted on 23 Oct 2019
How to Avoid an Unfair Dismissal
There are always risks when dismissing an employee regardless of the strength of the evidence. It might be as a result of a one-off, serious offence such as theft or fraud, or because of persistent absence or for reasons of redundancy.
Even if you do everything right, a disgruntled employee could still claim unfair dismissal, which will take time and money to defend. So how do you mitigate these risks?
Follow your company’s Disciplinary Policy
If you have a Disciplinary Policy, follow it. It will put you on the back foot if your decision to dismiss is challenged at Employment Tribunal and you did not follow your own policy. If you do not have a Disciplinary Policy, refer to the Acas Code of Practice on Disciplinary and Grievance Procedures, which sets out the benchmarks of a fair procedure.
Get the facts straight
Before you do anything, gather together all the evidence about the alleged offence. This might include attendance records, Occupational Health correspondence, a doctor’s letter, witness statements or expense claims in the case of alleged fraud. As part of the investigation, you might need to hold a meeting with the employee to clarify the evidence.
Suspend on full pay pending a disciplinary investigation
You should suspend the employee if the allegation is serious, e.g. making threats or physical violence at work, or theft. The suspension should be on full pay and be kept as short as possible. The purpose is to take the heat out of the situation by removing any immediate risks to other employees or customers, and to your business. It will also give you time to take witness statements and gather any other evidence.
Hold a disciplinary interview
You must inform the employee of the allegation against them in advance and provide them with copies of any evidence. For example, witness statements, so they can prepare their case. The employee must be given the opportunity to put forward their version of events, call witnesses and ask questions.
Allow the employee to be represented
Employees have a statutory right to be accompanied at any disciplinary hearing that might result in a formal warning or some other disciplinary action. This may be a work colleague, a trade union representative or a full-time trade union official.
Make sure you have an independent note-taker
You will not be able to conduct the disciplinary interview and take notes at the same time. The notes do not need to be verbatim, but they should capture the main points of the discussion and be accurate. Notes are important because they would act as evidence in your favour should the employee claim unfair dismissal.
Allow a period of adjournment
Even if the disciplinary decision appears to be obvious, it is important that you adjourn for at least 24 hours after the disciplinary hearing to allow you to consider the outcome. In a complex case, an adjournment is absolutely necessary and you might need time to carry out further investigations based on new evidence. In seemingly straightforward cases, it will help you to counter any perception the employee may have that the decision was prejudged.
Give the employee the right to appeal
This is essential. Regardless of the reason for their dismissal, and even if the employee does not dispute the offence at the time, they must be given the right to appeal against the decision to dismiss them. The purpose of appeal is to give the employee the chance to put forward new evidence in their defence and not to go over old ground. In the majority of cases, however, employees do not put forward any new evidence but you must still hear their appeal as part of a fair procedure. In fact, it might act in your favour at Employment Tribunal if the employee failed to produce any new evidence at appeal. The employee has the same statutory right to be accompanied at the appeal hearing.
An independent manager must hear the appeal
As far as possible, a manager who was not involved in the original decision must hear the appeal. They need to be able to act a fresh pair of eyes and ears to review the evidence and consider the reasonableness of the decision to dismiss. In a small business it is virtually impossible to find someone with no knowledge of the circumstances of the case. Normally, however, the next level of management would hear the appeal.
If you have any questions with regards to what a fair dismissal looks like, get in touch! We will be more than happy to help.