Employment Article
The 5 Top Tactics on How to Dismiss Fairly
In recent years the law relating to unfair dismissal has become a minefield of contradictory cases and opinions. The arrival and then abandonment of the Statutory Dispute Resolution Procedures added to the complicate patchwork of case law and regulation.
There are many ways in which a disciplinary process can be conducted fairly. The popular adage that there is "more than one way to skin a cat" holds particular true in this field. What might be right for one business or situation may not be right in another.
However, the golden thread that runs through all the case law is the concept of reasonableness - but even that can vary depending on the size of the business undertaking.
With that in mind, I have cut through the case law and regulation to select the 5 key principles which any employer should keep in mind and abide by when invoking the disciplinary process.
1. Do the Groundwork
Before issuing an invitation to a disciplinary hearing ensure that you have clearly formulated the grounds on which the hearing is to proceed. Set out the charges clearly and if they are supported by any terms in a contract, disciplinary or other policy, then refer to those terms. Ensure that all relevant documents which are to be relied on in the decision making process are attached to the letter (or are disclosed separately as far in advance of the hearing as possible). If dismissal is a likely or possible sanction then clearly state this.
2. Keep Control of the Process
Don't allow the pace or the agenda to be dictated by the employee. Be firm in your dealings. Allow one adjournment only if an employee fails to attend a disciplinary hearing. Tell them, if they fail to attend the second adjourned disciplinary hearing without good cause then you will proceed and make a decision in their absence. Quite often, a grievance raised to stall a dismissal process can be held in tandem with a disciplinary hearing to avoid delay. If the grievance is related to the manner of the disciplinary process or investigation, it can be held over and dealt with as part of any appeal against dismissal. If it is connected with any other matter then more likely than not it is irrelevant to the disciplinary hearing and ought not to be allowed to stall the process.
3. Think About Documentation
A clear paper trail is important. Hearings must be minuted and copies sent to the employee. If an important conversation takes place with an employee prepare a contemporaneous note as hard evidence of what was said. But keep clear of writing down damning opinions or anything which could be construed as a pre-judgment. Keep those communications verbal and private.
4. Consider and Deliberate
Deliberation is important. Snap or hasty decision making is to be avoided. Do not make a decision and announce it at the end of the hearing but adjourn and announce the decision later in the day or the following day. Do not delay a decision more than 5 working days unless the matter is extremely complicated in which case the employee should be given a timescale in which to expect a decision. Also, try to show some deliberation over the imposition of the sanction, particularly in borderline dismissal cases. A paragraph in the decision letter explaining what sanctions have been considered and why the chosen sanction is appropriate will re-enforce the Tribunal's impression that the employer has given some thought to the process and is endeavouring to give a reasoned and therefore reasonable opinion.
5. Know the ACAS Code
In all matters disciplinary the ACAS Code should be observed as far as possible. However, one should not follow it slavishly and in fact many larger businesses have disciplinary codes which do not necessarily follow the ACAS Code in all of its principles. That's fine - the Code is for guidance and is not mandatory. Whilst it is true that a Tribunal will view the code as a benchmark of reasonableness, the employer can deviate from the Code if the circumstances warrant and it would be reasonable to do so. The key is to observe the spirit of the code but not necessarily the precise letter.
For more information on the above or for advice on any other employment issue please contact our employment department on 020 7354 3000 or e-mail employment@colmancoyle.com
Author Profile: David Malamatenios
Date published: 14th April 2011