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Question:

I HAVE A MEMBER OF STAFF WHO, DESPITE REPEATED VERBAL AND A WRITTEN WARNING, IS CONSISTENTLY LATE FOR WORK, I WOULD LIKE TO FIRE THEM BUT AM CONCERNED THEY MAY TRY TO TAKE ME TO COURT FOR UNFAIR DISMISSAL. HOW DO I HANDLE THIS?

Answer:

In February 2002, the maximum compensatory award for an unfair dismissal when added to a basic award could be more than £60,000. If the employer has been guilty of unlawful discrimination or breached the contract of employment then the final figure could be even higher.

Every case is different; the prudent employer should take informed advice before embarking on the dismissal procedure.

Here are some guidelines that may help prevent problems:

?• Follow your own policy and that set out in the ACAS Code of Practice on Disciplinary and Grievance Procedures (Sept 2000);

?• Identify who within your organisation will play what role and who will deal with any appeal and fix a provisional timescale;

?• Do not delay: If the procedure takes too long, it will not be fair. If you need more time, consider suspension on full pay.

?• Investigate: The situation may require little investigation, or a lot. You may need to speak to (or even obtain statements from) a number of witnesses or that may not be necessary (you may have seen the employee skulk in late). The purpose is to establish the facts upon which you will base your decision. If you have carried out an inadequate investigation, then you have little chance of succeeding in any later claim.

?• Put the evidence to the employee: This is part of the investigation. You cannot investigate the facts without hearing what he says about them. Hold an investigation meeting with him. Tell him or (better) show him statements setting out what the witnesses say.

?• At every meeting, have someone along to write it all down.

?• Decide what the facts are. You will not have decided until you have heard what the employee has to say. If there is no case to answer, tell him so, and tell the complainants, too.

?• If you are satisfied that misconduct has occurred, hold a disciplinary meeting. Tell the employee what you believe the situation to be, and that you are considering disciplinary action. Ask him what he has to say before you make up your mind what to do. Note that the Employment Relations Act 1999 gives the employee an absolute right to be accompanied at disciplinary and grievance hearings by a work colleague or a trade union official. Any failure to allow this (or to permit the hearing to be postponed so that the representative can attend) can give rise to compensation of 2 weeks pay, on application to an Employment Tribunal, or render the dismissal unfair.

?• Weigh it all up and decide. The penalty must be appropriate to the circumstances (i.e. taking into account the misconduct and perhaps the employee’s previous disciplinary history; maybe there are other reasons for what happened, like a family crisis). It must also be something that the contract of employment entitles you to do (such as demote or suspend without pay). If you impose a penalty in breach of contract, you could face a constructive dismissal claim.

Once the employee has been dismissed it is for the employer to prove to an Employment Tribunal what the reason was for that dismissal. A dismissal for misconduct is potentially fair but nevertheless the tribunal would find it unfair unless satisfied that in the circumstances the employer acted reasonably in treating the reason as a sufficient reason for dismissal and having regard to “equity and the substantial merits of the case”.

In misconduct cases, the Employment Appeal Tribunal and court of Appeal have evolved a four-stage test for a fair dismissal for misconduct:

?• The employer (or rather the person making the decision to dismiss) must actually believe that the

employee was guilty of the misconduct; and ?• That belief must have been based on reasonable grounds; and ?• That belief must be as a result of a reasonable investigation; and ?• The decision to dismiss must be within the “band of reasonable responses” open to the employer.

The tribunal should not simply substitute its own view for that of the employer. It will acknowledge that, in some cases, there may be more than one reasonable response.

Broadly, the obligation on employer is not to be right, but reasonable, a point sometimes lost on employees who protest innocence.

The commonest reason for a finding against an employer in a misconduct case is that the dismissal was procedurally unfair.

If you have any queries about the above or any employment issue please contact:

Malcolm Lawrence of Copley Clark & Bennett on 01737 362131 or mjl@copleyclark.co.uk.