4. Never dismiss staff on the spot
There are two situations here. The first is where an Employee is caught "red handed" in the commission of some misconduct. The second relates to the timing of the announcement of a decision to dismiss at the end of a disciplinary hearing.
Firstly, never dismiss an employee summararily on the spot before going through a full disciplinary procedure. Even when an employee is caught "red handed". It is advisable to suspend the individual followed by the usual ACAS compliant disciplinary process. Why open yourself up to a finding that a dismissal was procedurally unfair even when there were sound reasons for dismissing the employee?
Secondly, the essence of a fair dismissal is deliberation on both sides. A carefully drafted ACAS compliant disciplinary Policy is designed to ensure that the Employee understands the charges that he faces and can deliberate on his response. The Employer should grant the same courtesy to himself. Indeed, the dismissal will be far sounder if the Employer can show that he has deliberated and considered both the evidence and the penalty before making a decision. It is never advisable to dismiss an employee at the end of a disciplinary hearing without an adjournment of at least one hour. This makes it apparent to third parties that the employer has deliberated before making the decision - even if, in reality, they have made up their minds during the first five minutes of the disciplinary hearing - or even before it. Having deliberated and followed the correct procedure, the Employee can then be summarily dismissed or dismissed with notice, depending on the circumstances. Hasty decisions no matter how justified almost inevitably lead to Tribunal claims.
This also relates back to the first point about training managers as they are the ones that often act hastily in both types of situation.
5. Unless dealing with a major disciplinary breach, always follow the normal procedure of three warnings
The law considers that employees ought to be given a fair chance to improve their inadequacies before being dismissed for them. The tried and tested formula approved by the courts as evidence of this is the three warnings - oral, first written and final written. It is surprising the number of times in which this procedure is not followed. Some employers will act thoroughly in steps one and two, issue a first and a second warning and then lose patience and dismiss without issuing a third warning.
Tribunals see this three step procedure as being fundamentally fair and correct. They expect Employers to observe it. For the sake of one additional warning, Employers should not rush to dismiss before a third warning has been issued, as the consequence will be a dismissal that will almost certainly be procedurally unfair.
6. When dismissing for incapacity or long term sickness, act on medical advice
The importance of this cannot be stressed too highly. Long term sickness absence is one of the most challenging issues to deal with. More claims arise from long term sickness absence than from anything else. They place enormous stress on both the resources and the patience of employers. Claims frequently arise because Employers act hastily, fail to give the Employee adequate time to return to work (how long is adequate depends on the size and resources of the Employer), or fail to take steps to protect the Company in the event that the illness is a disability under the disability provisions of the Equality Act.
Before dismissing an Employee for long term sickness absence, take the advice of an Occupational Health Specialist or a Specialist in the illness suffered by the Employee. By taking time to consider medical reports and acting on that advice you will give yourself maximum protection. Do not rush to dismiss someone without obtaining at least two medical reports first. Also, consider that many long term sicknesses are most likely to be covered by the disability provisions of the Equality Act or, if they are not, the Employee will almost certainly believe that it is a disability and expect his Employer to have acted accordingly. If you are unsure whether or not the DDA applies, act as if it does apply. This means that you should consider reasonable adjustments to facilitate the employees return to work.
Read More
Back to Top
