5 things you need to know about dismissing an employee for misconduct

Since 6 April 2012, employees require 2 years’ continuous employment in order to bring a claim for unfair dismissal. For those employees with 2 years’ service and more, employers will need to act reasonably before dismissing employees by reason of misconduct. Misconduct is a potentially fair reason for dismissal.

(1) Establish the facts

Employers must carry out a reasonable investigation of potential disciplinary matters without undue delay to establish the facts of the case. In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary meeting.

In British Home Stores v Burchell [1978] IRLR 379, EAT (as approved and applied by the Court of Appeal in W Weddel & Co Ltd v Tepper [1980] IRLR 96, CA) the Court formulated a three stage test for determining whether an investigation was reasonable:

(i) the employer must establish the fact of its belief and it did believe it;

(ii) the employer must have reasonable grounds for its belief; and

(iii) at the stage the employer formed its belief it must have carried out as much investigation as was reasonable in all the circumstances of the case.

In deciding whether their investigation has been adequate, employers should consider the following:

• whether evidence has been taken from all potentially relevant witnesses, including those who could provide evidence on behalf of the employee, and properly considered;
• whether all other potentially relevant evidence, including documentary evidence, has been obtained and properly considered;
• whether the investigating officer was sufficiently independent; and
• if appropriate, whether the evidence has been tested on the balance of probabilities.

(2) Provide the employee with the opportunity to answer the allegation(s)

The employee should be notified in writing and provided with:

• the specific allegation(s) of misconduct they need to answer;
• sufficient information about the alleged misconduct to enable the employee to answer the case against them; it would normally be appropriate to provide copies of any written evidence, which may include any witness statements;
• an indication of the possible outcome of the disciplinary meeting, particularly where it is possible the employee will be dismissed;
• the time and venue for the disciplinary meeting; and
• the employee’s right to be accompanied at the meeting.

The meeting should be held without unreasonable delay whilst allowing the employee reasonable time to prepare their case.

At the meeting the employee should be allowed to:

• set out their case and answer the allegation(s) against them;
• ask questions, present evidence and call relevant witnesses; and
• challenge any information provided by witnesses against them.

Where the employer or employee intends to call witnesses at the meeting, they should give advance notice that they intend to do this.

(3) Make a decision

After the disciplinary meeting, the employer should decide whether or not the allegation(s) of misconduct has been proven and, if so, what disciplinary penalty is appropriate. The employee should then be informed as soon as possible in writing. Where misconduct is confirmed it is common practice to give the employee a warning and notification of how long the warning will remain current and the consequences of further misconduct.

It is common practice to provide employees with:

• a written warning for a first act of misconduct;
• a final written warning for a further act of misconduct within the currency of a written warning or a more serious act of misconduct; and
• dismissal for a further act of misconduct within the currency of a written warning or a more serious act of misconduct.

A decision to dismiss should only be taken by a manager who has the authority to do so. The employee should be informed of the reason(s) for the dismissal, the date on which the employment contract will end, the appropriate period of notice and their right of appeal.

Some acts, termed ‘gross misconduct’, are so serious or have such serious consequences as to warrant dismissal without any previous warning or any period of notice.

An employer’s disciplinary rules should ideally give examples of acts which it regards as gross misconduct (eg theft, fraud, physical violence).

Where an employee is persistently unable or unwilling to attend a disciplinary meeting without good cause an employer can make a decision on the evidence available.

(4) Provide the employee with an opportunity to appeal

If an employee believes that the disciplinary action taken against them is wrong or unjust they should appeal against the decision. Appeals should be heard without unreasonable delay. The employer should confirm in writing the time and venue for the appeal meeting and the right to be accompanied at the meeting.

Employees should be asked for the grounds of their appeal in writing before the appeal meeting.

The appeal should be dealt with impartially and wherever possible, by a manager who has not previously been involved in the case.

After the appeal meeting, the employer should inform the employee of its decision as soon as possible in writing.

(5) Is the dismissal fair?

If an employee presents a claim for unfair dismissal, an employment tribunal must determine whether in all the circumstances (including the employer’s size and administrative resources) if the employer acted reasonably or unreasonably in treating the misconduct as a sufficient reason for dismissal. This must be judged in accordance with equity and the substantial merits of the case (section 98 (4) of the Employment Rights Act 1996).

As to how tribunals should interpret section 98(4) of the ERA, the Court of Appeal in Post Office v Folley and HSBC Bank plc v Madden [2000] IRLR 827, CA confirmed that the approach to the issue of whether a dismissal was reasonable or unreasonable was to consider if it fell within the “band or range of reasonable responses” open to that employer at the time it made its decision to dismiss, adopting the following guidelines laid down in Iceland Frozen Foods Ltd v Jones [1982] IRLR 439, EAT:

• the starting point should always be the words of section 98(4);
• in applying the section, a tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the tribunal) consider the dismissal to be fair;
• in judging the reasonableness of the employer’s conduct the tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;
• in many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;
• the function of the tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band, the dismissal is fair; if the dismissal falls outside the band, it is unfair;
• in so doing, the tribunal will have to consider what alternative courses of action were open to the employer; and
• whether the particular dismissal, at the time and in the circumstances in which it took place, was reasonable – not whether a dismissal at a later date was likely to have been reasonable.

In Whitbread plc (t/a Whitbread Medway Inns) v Hall [2001] EWCA Civ 268, [2001] IRLR 275, CA, the Court of Appeal confirmed that the band of reasonable responses test applied not only to the dismissal but also to the disciplinary process.

Comment

There is no ‘one size fits all’ approach to dismissals for misconduct. Each case should be decided on its own facts. That said, the more transparent and balanced the disciplinary process, the more likely the dismissal will be fair.

Before taking the decision to dismiss, prudent employers often take legal advice to ensure that the process followed was fair and reasonable.

For further advice or assistance call or email us at enquiries@ibblaw.co.uk.