As we continue to look at the issues that could make your dismissal unfair, we are highlighting what employers often get wrong and makes the process that you may be going through feel unfair.
If you feel overwhelmed and bamboozled by your company’s HR department, don’t assume they know what they are talking about. In many of our recent cases we have found that the HR advisors didn’t have a clue about the ACAS code of practice or employment law. email@example.com for support and advice.
Not setting out the nature of the accusations clearly to the employee
The employer should set out the alleged misconduct clearly and should, throughout the disciplinary process, be consistent in what it is accusing the employee of. Any disciplinary sanction must be imposed only in respect of allegations that were properly investigated and brought to the employee’s attention as part of the proceedings. For a misconduct dismissal to be fair an Employer has to show that at the time of the dismissal it believed the employee to be guilty of misconduct and that it had reasonable grounds for believing this, having carried out “as much investigation into the matter as was reasonable in all the circumstances”.
There are no ‘rules’ as to the level of investigation the Employer should conduct into the employee’s suspected misconduct, it will depend on the particular circumstances. However, the investigation should take place prior to any disciplinary action and the following points need to be considered when carrying out the investigation:
Identify the allegation to be investigated.
The investigating ‘officer’ must have no previous involvement in, or knowledge of, the matter, if at all possible; and should keep an open mind; and conduct the investigation as quickly as possible.
The ‘accused’ employee and witnesses need to be interviewed (not all witnesses need to be interviewed if a fact has been clearly established).
Keep notes/records of the investigation meeting. Ask the witnesses if they agree that the notes are a true reflection of the conversation. Advise witnesses of their duty of confidentiality.
An investigation report should be drawn up which sets out a summary of the evidence, including any inconsistencies. This report should not draw any conclusions, that is the role of the disciplinary panel. Although the investigator may have the remit to recommend whether the matter should proceed to a disciplinary hearing or not.
Not giving the employee the relevant evidence against him or her
The employer should provide the employee with all the evidence, typically in the form of witness statements, in advance of the disciplinary hearing. Ideally, the evidence should be provided when the employee is invited to the hearing, or at least far enough in advance for him or her to be able to prepare a proper ‘defence’.
In August 2014 the former BBC Head of Technology was found to be unfairly dismissed (although the Tribunal ruled he had partially contributed to his dismissal) and the Tribunal said they were “astonished” at the BBC’s “cavalier disregard for any of the norms of a fair disciplinary process”. This disregard included:
discussions of his dismissal in advance, as a foregone conclusion
interviewing replacements before the disciplinary procedure had begun
failing to conduct an investigation before the hearings
sending him 16,000 documents one day before the hearing
Not giving ‘lesser’ warnings where they are appropriate
In some cases, the alleged misconduct will be so serious that summary dismissal for a first offence will be justified. However, in cases of minor misconduct, a series of warnings before dismissal will be more appropriate.
There are no national guidelines to determine what gross misconduct is – each employer will have behaviours which they will not tolerate at work, depending on the employer and the nature of the work and type of workplace. The action must be so serious that it irrevocably destroys any trust and confidence on the employers’ part.
In a case in September 2013 (Brito-Babapulle v Ealing Hospital NHS Trust) the Employment Appeal Tribunal found that when considering the fairness of a dismissal, and in particular whether the decision to dismiss falls within the band of reasonable responses open to a reasonable employer, an employer (or Tribunal) should not jump straight from a finding of gross misconduct to a conclusion that dismissal was within the range of reasonable responses. The Employer should consider any mitigating factors, such as exemplary service, normal behaviour and conduct, the consequences of dismissal (for their career), any provocation, length of service, consistent treatment between employees – a finding of gross misconduct will not necessarily justify instant dismissal.
As we publish these articles we hope that by reading them you can gain strength for yourself, a friend or work colleague. Don’t stay silent please,