Recently a client called me for a catch up and some advice on a situation they have with an employee. I regularly talk to businesses about the risks and costs of terminating contracts and following disciplinary processes. I’ll cover a few in this Q&A.
“If I have an employee with under 2 years service I can just dismiss without risk, right?”
Due to the recent changes to legislation an employee must have 2 years service in order to make a claim for Unfair Dismissal. This does mean that there is less risk to a business if they choose to dismiss without following due process but it certainly doesn’t mean it is risk free.
There are automatically unfair reasons for dismissal that don’t require the length of service, and they aren’t only the protected characteristics that many people will be aware of.
Employees also have the ability to resign and claim constructive dismissal – if they feel their contract has been breach. Or to claim wrongful dismissal, again if they feel their contract of employment has been breached.
My advice? Don’t use the lack of 2 years service as an excuse to not follow your own policies, the ACAS code of practice or legislation. The costs can be high and as a small business, could be fatal.
“The disciplinary is just a formality, we already know what will happen don’t we?”
The disciplinary process set down by an organisation outlines what they believe to be a fair and reasonable procedure to ascertain whether someone is guilty of misconduct or not. In some business these form part of an employees Contract of employment, in which case not following them becomes a Breech of Contract and opens the business up to a claim for Wrongful Dismissal.
The Acas Code of Practice on disciplinary and grievance procedures gives practical guidance for handling these issues in the workplace. Failure to follow the Code doesn’t make a person or organisation liable to proceedings, however, an employment tribunal will take it into account when considering relevant cases.
Pre-judging the outcome of a disciplinary hearing can be seen as a breach of contract. By doing so you are denying the employee the opportunity to have a fair hearing. This could be seen as a breach of the implied terms of mutual trust and confidence, opening the business up to constructive and unfair dismissal claims.
“We have found the employee guilty of gross misconduct, do I still need to give them the opportunity to appeal?”
Yes, all employees have the right to appeal. This right forms part of the ACAS code of conduct and should form part of your Disciplinary Procedures.
Appeals should be held by someone different to the original hearing manager to ensure a fair hearing. By not allowing an employee, or ex-employee, this right, you are openly at risk of grievances and Employment Tribunal claims.
Do you have questions regarding dismissing employees for your organisation? Contact NJD People Consulting for advice.