Law guide: Employment

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Fair procedure and misconduct

Fair procedure and misconduct

Contents

Conduct

The type of misconduct can vary greatly. A minor incident would be arriving late for work. Gross misconduct would involve theft or divulging trade secrets. The important feature here in considering reasonableness of your actions is how you handled the situation.

For employers in England, Wales and Scotland, the Acas Code of Practice provides guidelines in circumstances of misconduct. For employers in Northern Ireland, see the Labour Relations Agency's code of practice on the Disciplinary and Grievance Procedures.

When faced with misconduct, you should tell your employee what they have done wrong and provide them with an opportunity to explain their position.

If, following this, disciplinary action is taken, your employee will have an opportunity to appeal against a decision.

Disciplinary action need not mean dismissal. In the event of minor misconduct, warnings should be given prior to this. The code recommends:

  • Oral and/or written warnings
  • A final written warning
  • Dismissal (or sanction example suspension)

For serious misconduct, it may be appropriate to skip an oral or written warning and move straight to a final warning; for gross misconduct it can be appropriate to dismiss without warning.

In most cases of misconduct, notice or payment instead of notice should still be given in accordance with a contract. However, in the case of gross misconduct you will most probably be entitled to terminate without notice.

In certain cases, the position may not be entirely clear. You may merely suspect that your employee has committed a theft. You may still have acted fairly by dismissing him or her, provided the tribunal is satisfied that you carried out a proper investigation and following such investigation, you came to a genuine and reasonably held belief in his or her guilt.

If your employee is charged with a criminal offence but denies guilt, this should only be ground for dismissal where it has employment implications. Was the offence committed in the course of employment? Was it an offence of dishonesty? Was the particular employee in a position of trust? Is the employee to be detained in custody? The outcome of any subsequent criminal proceedings does not necessarily have any bearing on the issue of whether you were reasonable in dismissing your employee prior to the hearing of the case.

You don't have to delay your decision and wait for the outcome of any criminal proceedings. You may, however, decide to suspend your employee pending the decision of the criminal court.

If you have not followed a fair procedure, it is no defence (except in exceptional circumstances) for you to argue that it would have made no difference to the decision to dismiss your employee, had proper procedures been followed. This may, however, be a relevant factor in assessing the amount of compensation that the employee may be entitled to.

Redundancy

You must act fairly and reasonably. In order for you to act reasonably you must:

  • Warn and consult your employee and any of his or her fellow employees affected or their representatives
  • Adopt a fair basis on which to select for redundancy
  • Take such steps as may be reasonable to avoid or minimise redundancy by a re-deployment within your organisation

Unfortunately there are no hard and fast rules and what amounts to 'acting reasonably' will depend on the particular circumstances.

It used to be common practice to use the 'last in, first out' approach as a basis for selection. However, this approach is now widely regarded as potentially breaching the age discrimination regulations and should not be used as the sole criteria. In other cases, it may be fair to select an employee whose job has effectively disappeared. You should always consider whether there are any alternative vacancies before implementing redundancies.

There may be exceptional circumstances where you can show that at the time of the dismissal, consultation or warning would have been utterly useless.

Against the law

If it becomes illegal for your employee to continue in his or her employment because he or she has committed some offence, a dismissal may well be fair. However, you should consider whether it is possible to employ the person elsewhere. For example, your employee is a driver and is unable to drive as a result of disqualification by the court. It is possible that you can utilise him or her in the area of maintenance.