Summary dismissal – employer obligations
You’ll have heard of the term ‘instant dismissal’ or ‘summary dismissal’ of course but what does it actually mean? Most employers think that in the most serious examples of misconduct the Alan Sugar style of dismissal (“You’re fired!”) is fine…it most definitely isn’t! Read our full article for the lowdown on gross misconduct dismissals.
You’ll have heard of the term ‘instant dismissal’ or ‘summary dismissal’ of course but what does it actually mean? Most employers will recognise that employees may be dismissed without notice for the most serious examples of misconduct – theft, violence etc. Too many though still assume that the Alan Sugar style of dismissal ("You’re fired!") is fine under these circumstances…it most definitely isn’t!
ACAS guidelines (all employers need to abide by these) make it clear that employees should not be dismissed (even for the most heinous of crimes) without the employer first conducting an investigation. As a minimum and in nearly all circumstances employers must:
Thoroughly investigate the incident, including taking statements from the employee themselves and witnesses and considering other evidence e.g. CCTV. The employee is sometimes suspended on pay for a short period while the investigation is carried out.
Write up the investigation into a report
And when it comes to the disciplinary hearing:
Invite the employee in writing to the hearing giving plenty of preparation time (at least a couple of days.) State the allegations clearly and the potential outcome (e.g. dismissal without notice) and enclose a copy of the investigation report (which should not in itself contain any judgement or recommendation of outcome) or of the information which you intend to reference in the hearing
Allow the employee to be accompanied at the hearing by a colleague or Trade Union representative
Conduct a fair hearing and give the employee a chance to state their side of the case and talk about any mitigating factors that may have influenced their behaviour
Do suspend the hearing to interview other witnesses if the employee suggests they may give a different perspective (and normally if they haven’t been interviewed already)
Summarise the outcome in writing (it’s good to tell them the outcome on the day too if possible)
Allow an appeal
So not quite instant then!
If a decision is made to dismiss the employee for gross misconduct then the dismissal can normally be effected without paying for any contractual notice which the employee may be a due (as a minimum this is the higher of their notice as is written in the contract or a week per year of service to a maximum of 12 weeks.)
It is important however to be sure that gross misconduct is actually gross misconduct. There is a standing joke in the myHRdept office that anyone who allows the milk to run out will be instantly dismissed, but of course in reality poor milk management is not a dismissable offence. Silly example, but employers do often try to dress up relatively minor things as gross misconduct to try to avoid paying notice – doing so can risk a wrongful dismissal claim and expensive litigation.
A final point employers should be aware of is the expectation that generally the investigation and the hearing should be completed by different people, although exceptions are allowed for very small businesses. For a range of disciplinary related videos see our website video section and do please toggle between pages to reveal more titles.
Bill Larke is a former HR Director from Coca-Cola and today leads myHRdept, an HR & employment law outsourcing business for SME businesses who don’t have their own internal HR or who want a cost effective alternative to employment solicitors.
If you're thinking of outsourcing your HR why not contact myhrdept.co.uk. With full service Premium Plus HR & employment law packages from only £140 per month (and start-up packages from just £70 per month) and fixed price HR support options available for one-off issues, we believe we offer the best combination of quality and price available in the UK. Call us on 01628 820515 to discuss your requirements contact us and we’ll call you back.