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How To Dismiss an Employee For Gross Misconduct

Posted by on 04 July, 2013

It all begins with and ends with a reasonable disciplinary procedure.

Holding a reasonable investigation is one of the most important, and potentially cost saving, activities you can do when looking to dismiss an employee on the grounds of gross misconduct. Holding a "reasonable investigation" and a "reasonable disciplinary process" can make or break a claim for unfair dismissal. By holding a thorough and reasonable disciplinary investigation you will not only give yourself a robust defence to any employment tribunal claim but you will also send out a clear message to the employee in question and all of your staff that misconduct will not be tolerated.

That's not to say the disciplinary process is purely about finding evidence to support a decision to dismiss, it's about going through due and proper process to reach a reasoned decision for dismissal, and a reasoned decision to dismiss will rarely afford an employee an opportunity to win an employment tribunal claim against you.

How Important Is It To Hold An Investigation Into Alleged Misconduct by an Employee?

Well the answer to this is quite clear, it's very important. The key principle that employment tribunals looks at when judging an unfair dismissal claim is not whether or not an employee is guilty of the alleged misconduct, but rather did the employer reasonably believe the employee was guilty of the misconduct at the time of dismissal - or at the time the dismissal was confirmed if an employee appeals the dismissal. To understand the importance of holding a proper and reasonable investigation is key to defending any claim for unfair or indeed wrongful dismissal.

A basic disciplinary investigation will consist of:

Interviewing Witnesses

Speak to any witnesses involved, take statements and get them to sign and date. Contemporaneous documentation is what wins employment tribunals, as the Tribunal will generally place more emphasis on contemporaneous written documentation than verbal evidence which isn't backed up with written evidence.

Investigatory Hearing

It will also, of course, be essential that you speak with the employee in question. At this stage it doesn't have to be done formally, although you can of course officially invite them to an investigatory hearing, or you can do this by speaking with them without notice. Invariably there will often be sufficient evidence to prompt suspension, and unless after speaking with the employee you have reasonable believed to believe the alleged conduct hasn't taken place then the employee should be suspended until such time as a disciplinary hearing can take place (normally within 5 working days as a general rule of thumb unless there are complex issues to consider). Sometimes it may also be more appropriate to suspend whilst the investigation takes place and then hold an investigatory hearing - each situation must be judged on the facts.

Notification of Disciplinary Hearing

The employee must be notified in writing if they are being suspended and state the reasons why. If dismissal is a possible result of the hearing then they should be informed that you are considering dismissal.

The Disciplinary Hearing

The employee should be invited to the hearing and within that notification of the disciplinary hearing you should outline the allegations and send any supporting evidence (e.g. witness statements) and notify the employee of their right to be accompanied by a trade union representative or colleague. There is no right for an employee to be accompanied by a legal representative, except for very limited circumstances.

Sanctions - Written Warning, Demotion, Suspension Without Pay, Reduction in Pay & Dismissal

Once all the evidence has been considered you are then free to make an informed judgement. What is key here is that when taking your decision you must reasonably believe the employee to have committed the alleged misconduct, and any punishment you opt for must be "within the range of reasonable responses". The range of "reasonable responses" has a lot of factors, including how you have reacted to similar misconduct from other employees in the past. It is important to note that unless an express contractual states otherwise, if you find then have committed the alleged misconduct then you may only issue a warning, dismiss, or of course take no further action!

The employee must be notified of the dismissal in writing, we have a free letter of dismissal available to download on our website.

Appeal Hearing

The employee should be given the right to appeal. If the employee decides to lodge an appeal, then a hearing should be held without unreasonable delay and the employee has the right to be accompanied as above. The purpose of a dismissal appeal is to look at whether the original decision was made in the correct manner and it is not a "fresh hearing", although new evidence can be brought in by the employee, and the employer alike that wasn't available at the original hearing.

Most Dismissals Are Different

Every situation is different and no one blanket approach should be taken when considering terminating a member of staff's contract of employment.

The above is meant as a guide only, and may not be applicable in all circumstances (e.g. where an employee does not have the pre-requisite period to claim unfair dismissal and you are dismissing on clear grounds that do not relate to pregnancy, disability, union involvement etc). In any case we always advise you take professional advice. Call us now on 01482 345 905 for a free initial discussion about how we can help advise or indeed manage the whole disciplinary process for you.

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