Dismissal For A First Offence

It is an unfortunate fact of being a manager that at some point in your career you will most likely have to deal with a situation involving dismissing an employee.

There are potentially five fair reasons for dismissal: conduct, capability, redundancy, some other substantial reason, or a reason in statue. When determining if a dismissal is fair, a tribunal will always consider the overriding objective of reasonableness and fairness.

At Russell HR Consulting we advise on a variety of situations which can potentially lead to an employee being dismissed. For example, sometimes we have to advise clients how to deal with a matter of potential gross misconduct. When dealing with issues related to conduct, employers have a duty to follow the statutory ACAS Code of Practice.

Many managers think that an employee can be dismissed instantly if he has committed an act of gross misconduct. It is correct that employees who are guilty of gross misconduct can be dismissed without notice; however, this should not be done until a thorough investigation has been conducted and the employee has been given the opportunity to put forward his case at a formal meeting as per the ACAS Code of Practice.

Failure to follow the Code could result in an employment tribunal increasing any compensation by 25% if the employee pursues a claim for unfair dismissal. Even when the facts of a situation appear to be very clear, in order to avoid procedural criticism from a tribunal, an employer should always carry out a proper investigation, collating all the relevant facts, before dismissal is decided.

If appropriate, an employee can be placed on paid suspension whilst the investigation takes place. However, suspension should always be an act of last resort. Where there is a situation of gross misconduct, an employee may be dismissed for a first offense. Some Companies reserve in their disciplinary procedure to apply the short form of the procedure during an employee’s first year of service.

This means that an employee who commits an act of misconduct or who lacks capability could potentially be dismissed even when there are no live formal warnings on file. Employers might take this approach because employees need a minimum of two years’ service to claim unfair dismissal.

However, employers should exercise caution. Employees need no service qualification to claim some types of automatic unfair dismissal or to claim discrimination. In addition to the legal aspect, there is also an ethical duty for employers not to hire and fire new recruits who have potentially left permanent positions elsewhere to work for them.

If a new employee is failing to meet your reasonable standards then it is important to give clear and timely feedback stating what standards you expect him to meet, what he is actually doing, and explain exactly where the gaps are and what needs to be done to resolve the issues.

Regular reviews, targets, feedback and additional support will give an individual the best opportunity to demonstrate that he can and will meet your standards before considering formal disciplinary action including dismissal.

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