Fair Misconduct Dismissal
How To Achieve A Fair Misconduct Dismissal And Avoid An Unfair Dismissal Claim
The need for disciplinary action will be as a result from the inappropriate conduct or behaviour by one of your employee’s. Dismissal will be an appropriate outcome in a disciplinary situation where the employee fails to correct their conduct or behaviour following previous formal disciplinary warnings or where their conduct or behaviour is so serious it warrants instant dismissal (gross misconduct). Misconduct is one of the five fair reasons for dismissing an employee. Read my tips to achieving a fair misconduct dismissal and avoid an unfair dismissal claim.
What Behaviours Lead to Disciplinary Action?
There is no legal list of what constitutes misconduct or gross misconduct. The range of behaviours will be different in each business and what one business views as gross misconduct another may view with more leniency and take a harder approach to a different set of behaviours. The circumstances to take into account when compiling a list of behaviours for misconduct and gross misconduct for your business will be:
- Type of work performed
- Safety issues
- Importance of reliable attendance and timekeeping
- Risks to the business of misuse of equipment
What Procedure Must You Follow?
If an employee’s conduct does not meet acceptable standards the company’s disciplinary procedure must be followed through each stage to ensure the dismissal is fair.
The procedure should follow the guidelines set out in the ACAS Code of Practice. The Code sets out the steps that should be taken to ensure a fair and reasonable procedure is followed for resolving instances of misconduct in the workplace.
The ACAS code of practice states that:
- Issues should be raised and dealt with promptly by both parties, with no intentional delaying of meetings, agreement to decisions etc.
- Both employers and employees should act consistently throughout the case.
- Employers should undertake necessary investigations to discover and resolve reported grievances.
- In the case of an employee disciplinary, employees should have the nature of the case explained to them and be given a reasonable chance to put their case and response forward.
- Employees should be given the chance to be accompanied to grievance and disciplinary meetings.
- Employees should be allowed to appeal any decision reached by their employer regarding any grievance, disciplinary or dismissal.
Unfair Dismissal
As we outlined in our article of Fair Reasons for Dismissal and Unfair Dismissal where a company fails to follow the procedure the employee can make a claim for Unfair Dismissal. Should either party fail to follow the ACAS Code then compensation awarded could be increased (in the case of employers failing to comply) or decreased (in the case of employees failing to comply) by up to 25%.
A subscription to my Library of Essential HR Documents provides a ‘Ready To Go HR Department’ that offers simple step by step advice to common HR problems. I like breaking down processes into simple easy to follow steps and have check-lists and templates for absolutely every HR situation you can think of. My easy-to-follow flow charts, meeting scripts, check-lists and template letters ensure everything is done properly, efficiently and compliantly in a professional, friendly and knowledgeable way.
When you join you will receive instant access to:
- Policies – clearly written and communicated policies are your best defence against tribunal claims.
- Flowcharts – provide step-by-step guidance to key aspects of HR.
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- Meeting Check Lists – provide a reminder of the essential points to be covered in the particular situation.
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The Discipline, Dismissals and Appeals folder provides a model disciplinary policy and a comprehensive range of template letters and meeting check lists for the investigation, suspension, formal meeting and appeal stages of the process. There are also a range of How to Guides that deal with unusual situations such as what to do when an employee goes off sick during a disciplinary process and what to do when an employee fails to attend a disciplinary meeting.
