Dismissal and disciplinary procedures need not be confusing, says David Green.

The Employment Act 2002 (Dispute Resolution) Regulations 2004 put into operation disciplinary procedures affecting both employers and employees.

General consensus is that the procedure is confusing. The latest Employment Tribunal figures show a rising trend in claims

There were a total of 132,577 cases between April 2006 and March 2007, compared with 115,039 in the previous year. It is worth noting that half of these claims were brought in respect of unfair dismissal and/or breach of contract.

The average award for unfair dismissal in 2006 was £8,670, compared to £7,303 in the previous year (Employment Tribunal and EAT Statistics 1 April 2006 to 31 March 2007). 

Such huge costs could be avoided by businesses if thorough documentation and procedures were in place and of course followed.

The disciplinary and dismissal policy should outline the Statutory Procedure, known as the ‘three steps’.

Employers must follow the statutory procedure, which should be outlined in their employment handbook when disciplining an employee, failure to comply with all or part of this procedure and an employment tribunal will automatically find an unfair dismissal.

Employee entitled to a representative

Write to the employee letting them know the alleged offence, detailing the allegations and inviting them to a meeting to discuss the matter. 

Employers should then let the employee know that they are entitled to have a representative with them at the meeting they can either be a work colleague or trade union rep.

Hold a meeting with the employee and notify them of the decision reached, allowing time for an adjournment and informing them of their right to appeal.

If the employee wishes to appeal, an appeal meeting should be arranged with senior management.  The employee should be advised of the final decision in writing.

There are potentially five fair reasons to dismiss: redundancy, capability, conduct, illegality and for some other substantial reason.

The employer must clearly explain the allegation that has been made. The employer is advised to take statements from the individual and from any other workers if they have witnessed the act. 

The employee must receive reasonable notice of the intended meeting and it is always advisable to state that the employee can have representation; this can help prevent the employer from being taken to a Tribunal.

Remain objective 

During the meeting, it is essential to have another business manager present to offer additional advice and a HR person to record the session.

Within the meeting make sure the employee fully understands that no decision has been reached. It is advisable to take at least 15 minutes to an hour recess before reaching any conclusion.

It is paramount to try to remain objective, hold back the final decision, and do not look as if the final decision has already been made.

In only very exceptional cases the Tribunal may find that where an employer has dismissed an employee without a meeting the dismissal is still demand to be fair.

To accommodate this the regulations allow employers to use a modified procedure under which an employer is required to write to the employee after the dismissal setting out the reasons for the dismissal and to hold an appeal meeting if the employee should so request.

It is vital, however, that employers should be given the opportunity of putting their side of the story across before deciding what action to take.

Modified procedure 

Whether the procedure is gross misconduct or not the procedure is still the same. No dismissal should be instant, as even in cases of gross misconduct there should still be a thorough investigation and disciplinary meeting to establish the facts.

Legislation allows the employer to use a modified procedure, however, but this should only ever be used in exceptional circumstances and advice should always be sought on this point before any action is taken. 

The modified procedure allows an Employer to set out in writing the employee’s alleged gross misconduct that has led to the decision to dismiss but must also give the employee the right of appeal.

All good staff handbooks will outline the difference between misconduct and gross misconduct. Employees must realise, however, that even if the act is not specifically stated in the handbook, it does not mean that the offence is not judged as misconduct or gross misconduct. 

For example, the gross misconduct list may merely state “a criminal act” and some employers may choose to clarify this further, but there is no need. 

An employer will not always be able to avoid a tribunal and the only way to ensure a successful outcome, is by being fully prepared. 

Employers must make certain there are good grounds for any decision based on written documentation and of course adhere to statuary procedure. 

David Green is chief executive officer at MTA Solicitors.

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