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DISMISSAL - FAIR AND UNFAIR : A GUIDE FOR EMPLOYERS
PL714 (REV 11)
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. These matters are dealt with more fully
below.
What is the Acas Code of Practice on disciplinary
and grievance procedures?
Acas has produced
a Code of Practice (see Appendix 2).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.
Legislation
specifically requires tribunals to take these factors into account
when determining whether the employer acted reasonably. For instance,
a small firm where there is only one level of management may not
be able to provide a right of appeal to another manager. Nor would
an employer employing only a small number of people necessarily
be expected to have a formal written disciplinary procedure, and
keep formal records of every offence and disciplinary action taken
- although it might be prudent to do so, since if no records are
kept, the tribunal will have to decide between the employer and
the employee if their evidence conflicts.
As the Code
states in relation to smaller establishments '...it may not be
practicable to adopt all the detailed provisions but most of the
features listed could be adapted and incorporated into a simpler
procedure'. Above all, the tribunals are concerned with the
question of whether the employer acted reasonably in the circumstances
- not whether all the provisions of the Acas Code were followed,
or whether the employer acted as they would have done. See Acas
advisory handbooks Discipline at work and Employing people.
What
are the essential elements of a good procedure?
Reasonable
procedure is, therefore, no more than what an employer should
always do in the interests of justice and good employee relations.
Its essential elements are as follows:
The new
recruit
When the employee is first engaged he or she should be given clear
instructions as to the scope of the duties.2
So far as matters of conduct are concerned, there should be clear
rules which are reasonable having regard to the nature of the
undertaking. The employee should know what actions are considered
so serious that a first offence means summary dismissal, that
is dismissal without notice or pay in lieu of notice .3
Unsatisfactory
conduct of employee
Except where the default is so serious as to justify summary dismissal,
for example where an employee has been caught 'red-handed' in
an act of gross misconduct, an employee should always be told
in what way he or she is at fault and warned that an improvement
must be made. It is not essential to put warnings in writing,
but it is desirable to do so. A written note will ensure that
the employer's intentions are absolutely clear and may also be
useful in evidence should the case come to a tribunal.
The employee
should be given a reasonable time to improve after being warned.
The employer
should always give the employee a proper opportunity to put his
or her side of the case even in a case of gross misconduct, and
should take account of what the employee says before making
any decision about dismissal. The employer should not jump
to hasty conclusions and assume, for example, that an employee
who has been warned about possible dismissal because of bad time-keeping,
does not have a genuine reason for being late on a subsequent
occasion on which the employer is considering dismissing the employee.
Workers are
entitled to be accompanied by a fellow worker or a trade union
official of their choice at certain disciplinary and grievance
hearings provided they make a reasonable request to be accompanied
(see section 3 of the Acas Code
of Practice reproduced at Appendix 2).
Dismissing the employee
The employer should always explain clearly to the employee the
reason for the dismissal.
Where possible,
the employee should be given the opportunity to appeal to another
manager from the one who made the decision. This may not be possible
in the very small firm, but even then there should be opportunity
for the employee to ask the employer to reconsider the decision
if he or she feels that there has been some unfairness.
Employment
tribunals can make a supplementary award if employers have not
allowed employees to use an appeal procedure provided by them
(see Compensatory
award).
Written
statement of reasons for dismissal
The Act also
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 Under employment
protection legislation an employer is generally bound to give
an employee not later than two months after the beginning of the
period of employment a written statement setting out the principal
employment particulars, and these must include the job title or
a brief description of duties.
3 The Code
of Practice says employees should not be dismissed for a first
breach of discipline, except for gross misconduct.
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