This year I have had to deal with more incredibly unreasonable employees than at any time in my 30 year career in HR. I have never come across such shameless case making. And since the repeal of the tribunal fees applications to tribunal have exploded. Numbers are up 165% on last year’s figures. Looks like the mad, bad and frivolous claims are back in force.
All this means that employers have to be very, very careful to get things right when they manage staff conduct or performance. It won’t necessarily stop a claim being made; but a careful and rigorous approach will increase your chances of winning if you choose to fight. It also improves your chances of negotiating a sensible exit if you try to settle.
If you dismiss an employee it is for you to show the reason for any dismissal. The dismissal of a qualifying employee (i.e. an employee with at least two years' continuous employment service) will be unfair unless you can show that the reason was one of five potentially fair reasons (i.e., misconduct, capability, redundancy, contravention of a statutory restriction or for some other substantial reason); and that, in all the circumstances (including the size and administrative resources of the business),you acted procedurally correctly and reasonably in treating that reason as a sufficient reason for dismissal.
The reasonableness of your decision will be determined in accordance with equity and the substantial merits of the case. This is an objective test. The benchmark for procedural fairness in the case of discipline is the ACAS Code of Conduct on Disciplinary and Grievance Procedures (the Code) which sets out behaviours that you must adopt before taking the decision to dismiss an employee for misconduct or poor performance.
A reasonable investigation is essential. The celebrated case of British Home Stores Ltd v Burchell requires that in order to establish the reason for dismissal in a misconduct situation, you must show that you:
- believed the employee to be guilty of misconduct;
- had reasonable grounds upon which to sustain that belief;
- carried out as much investigation as was reasonable in all the circumstances at the stage at which you formed the belief.
A disciplinary process should involve a thorough investigation, making sure the employee is fully aware of the case against him and then has the chance to respond to the allegations and put his own position/defence to you. If the employee raises issues which need further investigation the disciplinary hearing you should adjourn to allow any necessary additional investigations to be carried out.
In any event, you should always adjourn a discipline hearing before making a decision so that you can consider the case fully before coming to any final decision. During that adjournment, the decision maker, with the support of HR as appropriate, should consider all evidence and mitigating factors carefully, before determining what, if any, disciplinary action is appropriate.
There is no statutory 'tick box' list available (more’s the pity),but you should consider the following factors when assessing the reasonableness of a decision to dismiss in a misconduct situation:
- length of service
- the nature of the employment and experience
- general work record
- the status of the employee
- working environment
- consistency of treatment / the penalty imposed in similar cases in the past
- the nature of the misconduct involved, and whether it amounts to gross misconduct
- the extent to which any company rules have been breached
- whether the conduct is deliberate or repeated
- whether or not there are any live disciplinary warnings on file
- whether or not the employee was remorseful for their actions
- whether the employer's actions were reasonable, particularly when dealing with a situation where an employee has refused a reasonable instruction
- are any mitigating circumstances which might make it appropriate to adjust the severity of the penalty
Before deciding whether disciplinary action is appropriate and, if so, what form it should take, the ACAS Guide also suggests that you should consider whether:
- your rules indicate what the likely penalty will be as a result of the particular misconduct;
- the standards of the wider workforce are acceptable, and whether the employee is being unfairly singled out;
- any training, additional support or adjustments to the work is necessary.
Whether or not a dismissal is fair or not will depend on many factors. You need to carefully consider all of the circumstances before reaching a decision to dismiss.
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Although every effort has been made to ensure the accuracy of the information contained in this blog, nothing herein should be construed as giving advice and no responsibility will be taken for inaccuracies or errors.
Copyright © 2018 all rights reserved. You may copy or distribute this blog as long as this copyright notice and full information about contacting the author are attached. The author is Kate Russell of Russell HR Consulting Ltd.
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