When faced with the difficult decision to dismiss an employee for misconduct or poor performance, it’s crucial to follow established procedures to minimise the risk of disputes and litigation. Here are key steps to ensure a fair process:
Never Act on Impulse
Avoid making impulsive decisions, even in cases of gross misconduct, as this can expose you to unfair dismissal claims. Termination should always be a last resort. Before taking action, consult a solicitor who specialises in employment law to help navigate the situation and ensure compliance with the Advisory, Conciliation and Arbitration Service (Acas) guidelines.
Acas Code of Practice – The Seven Steps
The Acas statutory Code of Practice outlines fair procedures for disciplinary actions prior to dismissal. While not legally enforceable, it is taken into account by employment tribunals in disputes.
- Be Consistent – Handle disciplinary situations consistently and without unreasonable delays. This helps ensure that all employees are treated fairly and equitably.
- Inform the Employee – Employees must receive written notification of the issue, detailing the disciplinary matter and potential consequences. They should also be provided with any written evidence, such as witness statements, before the disciplinary hearing.
- Investigate the Facts – After notification, employees should have the chance to present their case. Employers should conduct thorough investigations to gather facts, which may include holding an investigatory meeting with the employee and their representative if requested.
- Hold a Formal Disciplinary Meeting – A disciplinary meeting must take place before making a dismissal decision. The employee, and their representative if desired, should be present. During the meeting, the employer should outline the grievances, review evidence, and reference the employee’s contract and handbook. Employees should be allowed to ask questions, respond to allegations, and present their own evidence, including calling witnesses if necessary.
- Take Note – The best practice in any formal meeting with an employee is to take a note; they provide a helpful snapshot of what was discussed during a meeting, it can help narrow down issues and can even be used during tribunal proceedings later down the line.
- Consider a Written Warning – If the employee does not refute the claims of misconduct or poor performance, it’s common to issue an initial written warning. If further issues arise, a second, final written warning should be given before considering dismissal. If an employee repeatedly fails to attend disciplinary meetings, a decision can be made based on the evidence available.
- Dismissal – If a dismissal is deemed appropriate after the disciplinary meeting, the employee must be informed in writing as soon as possible. This communication should include the reasons for dismissal and the termination date, along with the appropriate notice period.
- Prepare for an Appeal – Employees have the statutory right to appeal their dismissal or any disciplinary action taken against them. Be ready to conduct an appeal hearing, which the employee must request in writing. Regardless of the outcome, promptly inform the employee of the decision.
By following these steps and maintaining a fair process, you can help protect your business from potential disputes while addressing employee performance issues appropriately.
For more information or for expert advice on business or personal legal issues, contact us at info@carterbond.co.uk or email us at www.carterbond.co.uk or call us on 020 3475 6751.
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