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Unfair Dismissal: 4 Factors that Make or Break a Claim of Unfair Dismissal

Employers use disciplinary procedures to inform employees that their performance isn’t to the standard expected and to monitor and encourage improvement. However, when not used or conducted appropriately, if dismissed an employee may have an arguable claim for unfair dismissal (if they have two years continued service), regardless of how blatant their misconduct.

In these unfair dismissal claims, Employment Tribunals apply the “Acas code of practice on disciplinary and grievance procedures” and are able to make a compensation award of a fixed sum for damages as well as a compensatory award for the sums not earned resulting from the dismissal for up to 20 years.

With their being many potential errors in the disciplinary process it is important for employers to ensure, above all else, they are both fair and reasonable. It is important, therefore, to identify where disciplinary procedures can go wrong for employers.

Improper investigatory and disciplinary meetings

A disciplinary investigation does not always need to be a time consuming and strenuous endeavour; these should be reasonable, given the nature of the alleged misconduct and all other circumstances in each case.

A minor misconduct will not require an investigation as intense as an allegation of gross misconduct; although the employer should still be satisfied they have investigated sufficiently to reasonably understand the allegation. An allegation of gross misconduct will require a rigorous investigation, particularly if dismissal is a possible outcome, in order that the employer can justify this outcome. Even if an employee admits to the allegation, it is important than an appropriate investigation is carried out as the misconduct may involve other employees or institutional procedure or practice. Indeed, a proper investigation is a procedural requirement of the Acas code of practice.

A record should be kept of all evidence gathering during the investigation, including a note of the employee’s statement regarding the incident. Only once the investigation has concluded, should the employer decide what action to take against the employee. The employee should be given time to prepare should there be a disciplinary hearing and a chance to make representations.

There may be mitigating circumstances to the misconduct, and the tribunal will expect the employer to have acted reasonably and to have considered these.

Not setting out the nature of the accusations to the employee

Employers must ensure that disciplinary procedures are focused on the accusations put to the employee from the outset and not be tempted to add further matters until a full procedure is completed for each allegation.

For a misconduct dismissal to be fair an employer has to show that, at the time of the dismissal, it believed the employee to be guilty of misconduct and that it had reasonable grounds for believing this, having carried out “as much investigation into the matter as was reasonable in all the circumstances”.

In Mbuyi v Newpark Childcare (Shepherds Bush) Ltd, the dismissal of a Christian employee who expressed views about a colleague’s homosexuality was found to be both unfair and discriminatory. The employer was found to have reached conclusions and views about the employee simply based on allegations discovered during the investigation procedure, which were not put to the employee.

There are no set rules in the investigation of alleged misconduct; however, an investigation should always take place prior to the disciplinary hearing. Points which need to be considered when investigating are:-

  • Identify the specific misconduct allegation to be investigated;
  • The investigating ‘officer’ should have be impartial and unbiased, with no previous involvement in the case;
  • The employee and any potential witnesses should be interviewed and accurate notes should be taken.
  • An investigation note should be completed. This may not draw any conclusions from the findings, however, the ‘officer’ may recommend whether to proceed to a disciplinary hearing or not.

Acas have produced a guide to Conducting Workplace investigations to ensure that employers can appropriate focus on the allegation they wish to investigate.

Lack of consideration of alternative sanctions

During the disciplinary process, employers are required to actively consider what sanction is appropriate. This decision does not need to be taken at the start of the process; it can be reached at any stage that it seems appropriate, if information is discovered to justify it.

It is particularly important that a finding of gross misconduct is not treated as an automatic justification for summary dismissal. A Tribunal will require that an employer has considered that the sanction to be imposed is appropriate in each case.

In Burdett v Aviva Employment Services Ltd, a claimant who suffered from schizophrenia had assaulted co-workers. An Employment Appeals Tribunal found that a dismissal was not automatically within the range of reasonable responses without considering mitigation.

Indeed, an employer will be expected to consider all factors in making a dismissal. The Employer should consider any mitigating factors, such as exemplary service, normal behaviour and conduct, the consequences of dismissal (for their career), any provocation, length of service, consistent treatment between employees. All mitigating factors are expected to also be taken into account.

Dismissal for reasons not included in the workplace disciplinary policy

The nature of the misconduct will be clear in more cases, but the disciplinary policy detail the type of conduct that could fall into each category of misconduct. It will be necessary for employers to make a reasonable judgement in many occasions of alleged misconduct.

There sanctions will be determined in accordance with the employer, as some offences may be more serious in some workplaces than others, but it is important that employers decisions align with all relevant policies, not only disciplinary procedure. 

In McElroy v Cambridgeshire Community Services NHS Trust, an employee was dismissed for smelling of alcohol during their working hours. However, the employer’s substance misuse policy did not ban employees from drinking alcohol before work. The policy stated that the employer would offer assistance and support for alcohol misuse, and that the disciplinary policy would be applied in cases of continued misuse, or where there was an adverse impact on performance. An Employment Tribunal found that, as the employer had not followed their own disciplinary procedure in that the misconduct was not a repeated offence, dismissal was unfair.

Additionally, it should be noted that an offence may not merit the sanction simply because it is stated within the employers disciplinary policy. A Tribunal will expect a fair procedure and consideration of any mitigating factors in reaching a dismissal decision.

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For more details on the employment law issues surrounding the process of unfair dismissal please contact Dallas McMillan.

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