Disciplinary Process / Unfair Dismissal
If you conduct a disciplinary hearing that leads to a dismissal, it is important to consider what the Tribunal will look at in an unfair dismissal claim.
In bold below are the common questions that the Tribunal will address in an unfair dismissal claim when the employee was dismissed for misconduct (including gross misconduct) – the additional text is my comment.
I have covered broadly the key elements addressed by the Tribunal.
What was the reason for dismissal?
This is the first question the Tribunal will address. The answer may be obvious, but where the company may say the reason was the alleged misconduct, the employee may say there was another reason (particularly if there was another incident (a grievance, pregnancy, whistleblowing etc.) close in time to the dismissal.
In the circumstances (including the size and administrative resources of the employer) did the employed act reasonably or unreasonably in dismissing the employee?
Here I have paraphrased the legislation under section 98 (4) of the Employment Rights Act where the Tribunal are looking at the procedural fairness of the dismissal.
In a conduct dismissal, the Tribunal will address the following 3 questions (known as the Burchell test):
The employer must show that:
- It believed the employee was guilty of misconduct.
- If yes, there were reasonable grounds upon which to sustain that belief.
- At the stage at which the belief was formed, there was as much investigation into the matter as was reasonable in all the circumstances of the case.
This 3-stage test (often number 3 in particular) are the main battle grounds in such a case.
The Tribunal will also look at the procedural steps taken in conducting the disciplinary process, generally, the following must be present for the dismissal to be fair:
- The employee must be made aware of the case against them.
- The employee must have an opportunity to state their case.
- There must be the right to appeal the dismissal.
The Acas code goes further than the above and is important to consider and apply – see the code here.
Did the decision to dismiss fall within the band of reasonable responses?
The Tribunal will consider the decision to dismiss against the object standard of the reasonable employer and not by reference to its own subjective view. The Tribunal must not substitute its own view as to whether dismissal was the correct standard, but rather decide if the employer acted within the band of reasonable responses – generally this is difficult for employees to beat.
It is good practice to have in mind what a Tribunal will consider if a claim of unfair dismissal is made. An understanding of these questions will filter into the process adopted.
Claims are often made no matter how fair and transparent the process followed was, but being able to respond confidently to the questions above is favourable.
The Dismissing Officer, Questions To Ask Yourself
- If you are tasked with hearing a dismissal and making the final decision, ask yourself these questions first:
- Am I familiar with our own disciplinary procedure?
- Hoping yes, have we complied with it?
- Was the employee given notice of the allegations and sufficient time to consider the materials / evidence to be used at the disciplinary hearing?
- Do I genuinely believe the employee was guilty of the charges and can I explain why with reference to the evidence?
- If yes, are there reasonable grounds, on the balance of probabilities, to sustain that believe?
- Has there been a thorough investigation? Have there been any points raised that have not been investigated?
- Have I considered the defence / explanation put forward by the employee?
- Is the misconduct sufficiently serious to justify the disciplinary sanction I am considering? Can I explain on what basis?
- Have I considered any mitigating circumstances advanced or that should be considered? (such as length of service, previous disciplinary record, points made by or on behalf of the employee.)
- If the decision is to dismiss, is it within the range of reasonable responses open to a reasonable employer in the same position?
This blog is for information purposes only. Nothing should be relied upon as a substitute for legal advice and nothing written should be construed as legal advice or perceived as creating a lawyer-client relationship.