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DISMISSAL - FAIR AND UNFAIR : A GUIDE FOR EMPLOYERS (PL714
Rev 13 - URN 05/1912)
What
is reasonable procedure1
and sufficient reason for dismissing an employee?
An employer
must act reasonably in all the circumstances in treating the
reason for dismissing the employee as a sufficient reason for the
dismissal. Not only must the employer have a valid reason for the
dismissal, but also he or she must have acted reasonably in all
the circumstances in dismissing the employee for that particular
reason. The question whether the employer acted reasonably not
only involves consideration of the way in which the dismissal was
carried out, but also whether he or she acted reasonably in
relation to the situation leading up to the decision to dismiss
the employee. For example, if the employee was dismissed for
misconduct or lack of capability, it is necessary to consider
whether he or she was warned and given a chance to improve or, if
redundancy was the reason for dismissal, whether the employee was
considered for alternative work within the same organisation.
In deciding
whether the employer acted reasonably in dismissing the employee
the tribunal will also take account, amongst other factors, of
whether he or she followed appropriate disciplinary procedures.
From 1 October 2004, when statutory dismissal and disciplinary
procedures come into force2.
If those procedures apply and are not treated as having been
complied with, a dismissal will be unfair if an employee is
dismissed without the statutory procedure having been followed
(see
Dismissal without
following statutory dismissal and disciplinary procedures).
For further details of the statutory procedures see the
Dispute
resolution web page.
From the same date, however, if an employee fails to follow a
disciplinary procedure which goes beyond the statutory procedure,
that failure will not by itself make the dismissal an unfair one -
provided that properly following the procedure would have made no
difference to the decision to dismiss, and that the dismissal was
fair in all other respects.
What is the Acas Code of Practice on disciplinary
and grievance procedures?
Acas has produced
a
Code of Practice. This
gives employers practical advice on how to deal with disciplinary
matters in a way which is fair and can be seen to be fair by their
employees. Tribunals take into account any provision of the Code
which appears to them to be relevant to any question before them.
They do not expect all employers to follow the Code to the letter
regardless of their particular circumstances, but to decide to
what extent it is practicable and necessary for an employer to
do so given the size and administrative resources of his or her
firm.
Written
statement of reasons for dismissal
The
Employment Rights Act 1996
provides that employees who have been dismissed may request from
their employer a written statement of the reasons for their dismissal,
which their employer must provide within 14 days. Employees
who are dissatisfied because they have not received a statement
or believe the statement to be inaccurate may refer the matter
to an employment tribunal. All employees with one year's continuous
service with their employer qualify for this right. An employee
who is dismissed at any time and for any reason while she is pregnant
or during a statutory maternity leave period will be entitled
to receive a written statement of the reason for her dismissal,
without having to request it and regardless of her length of service.
There is of
course nothing to prevent an employer from providing written statements
voluntarily for employees who do not qualify for this right under
employment legislation.
1
Where employers and unions have agreed on dismissal procedures
they can apply for exemption from the provisions of the legislation
(see Exemption from the unfair dismissal
provisions). 
2 The statutory
procedures will apply when an employer first contemplates
dismissal or disciplinary action on or after 1 October 2004, but
not when a procedure of the employer's own has been started before
that date.
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