There is nothing more frustrating for employers than discovering that an employee dismissed for blatant misconduct has a claim for unfair dismissal.
So what are the top 10?
- HR involvement in decision-making
Managers carrying out disciplinary investigations and hearings will usually rely on guidance from HR as to policy and procedure, as well as previous disciplinary sanctions for the purposes of consistency.
However, HR involvement should not stray into assessments of the employee’s credibility or culpability. Managers need to make the decisions not HR.
HR advisers should restrict their involvement to issues of law, policy, guidance and procedure.
- Dismissing for a reason not covered by your disciplinary policy
Employers should ensure that their approach is in line with all relevant policies, not just the disciplinary procedure.
Whistleblowing and grievance procedures, or policies covering activities outside the workplace, may also be relevant. Once an employer has decided what acceptable conduct is for employees and prepared policies accordingly, these need to be followed.
A fair procedure and consideration of any mitigating factors are required and the tribunal will still consider if the decision to dismiss was fair in all the circumstances.
- Relying on breach of implied contractual terms
Employees are obliged to disclose their own wrongdoing only if they owe a fiduciary duty to their employer, or if an obligation arises under their contract of employment.
In the absence of clear wording in the employment contract, it is probably unfair to dismiss an employee for failing to report his or her own misdeeds.
- Dismissing for a reason not put to the employee at the outset
Employers must not be tempted to add further matters part of the way through the disciplinary process, unless a full procedure is followed for each allegation.
- Over-reliance on earlier warnings
Previous warnings can be a minefield for employers. Other than in cases of gross misconduct, dismissal is likely to be unfair unless there is a live final written warning.
Relying on an expired warning is extremely dangerous.
- Dismissing without considering other sanctions
Do not assume that a finding of gross misconduct automatically justifies summary dismissal.
A tribunal will expect to see evidence that the decision-maker has considered if this is the appropriate penalty in each case.
It is important to consider all the circumstances, including the penalty that has been applied in similar cases, the employee’s length of service and disciplinary record. Any mitigating circumstances should also be taken into account.
These might include the employee’s remorse for his actions as well as any personal circumstances that may be relevant.
- Muddling investigatory and disciplinary meetings
If an employee owns up to misconduct during an investigatory meeting, you may be tempted to move straight to a disciplinary sanction. This should be avoided.
There may still be issues that need to be investigated; for example, if the employee alleges that the conduct in question is widespread or condoned by their manager.
Further, the procedural requirements that apply to a disciplinary meeting will not have been followed, meaning that any dismissal is also likely to breach the ACAS Code
Keep a record of the employee’s admission and, once the investigation is complete, convene a separate disciplinary hearing. As usual, the employee should be given time to prepare for the disciplinary hearing and a chance to make representations.
There may be mitigating factors to take into account, and the tribunal will still expect the employer to have acted reasonably and to have considered these.
- Dismissing without any process during the probationary period
Given that employees who are still under probation have short notice periods and are unable to claim ordinary unfair dismissal, some employers may choose to dismiss without following any procedure during this time.
However, it is important to remember that there is no service requirement for claims of automatically unfair dismissal; for example, dismissal for whistleblowing or for a health and safety reason.
All workers and job applicants are also protected under discrimination law regardless of length of service. Employers should therefore consider if any such issues might arise before moving straight to dismissal.
- Increasing sanction to dismissal on appeal
Employers sometimes consider increasing a final written warning to dismissal as part of the appeal process.
This might be because the appeal manager takes a different view as to the severity of the misconduct, or because further information comes to light.
Increasing the penalty in this way can be risky. It is important to ensure that such a step is permissible under the employer’s own disciplinary policy.
Employers should bear in mind that such a step is contrary to the Acas code, which expressly states that appeal should not result in an increased sanction (as this may deter individuals from appealing).
- Choosing an inappropriate decision-maker
The ACAS code provides that, where possible, different people should conduct the investigation and the hearing and then a further person for any appeal.
The appeal should ideally be heard by someone senior to the original decision-maker and from a different reporting line. This can be a particular problem for small employers, where finding separate decision-makers for the initial hearing and appeal stage can be tricky.
And finally, don’t forget…
With so many potential pitfalls, employers may wonder how a dismissal is ever fair. There are, however, two things to bear in mind.
First, while procedure is important, tribunals retain a degree of pragmatism. Employers need to demonstrate that they have been reasonable and above all fair.
Second, while a procedural flaw may result in a technical finding of unfair dismissal, it is still open to the employment tribunal to reduce the compensation awarded, either to reflect the employee’s culpability for his or her own dismissal (contributory fault) or because the procedural errors made no difference to the overall outcome
That said, it is better to avoid these pitfalls, if only to prevent the waste of time and cost of an employment tribunal.