Dismissing Employees

1. Misconduct

A friendly word from a supervisor or manager can resolve most problems. But, if necessary, dismissing an employee for misconduct is usually relatively straightforward.

1.1 Write down clear, reasonable rules and procedures. They should include:

• What the disciplinary offences are.
• What procedures will be followed if an employee commits a disciplinary offence. These procedures should be fair and reasonable in line with the Acas Code of Practice.
• Which offences provide grounds for summary dismissal.
• What rights of representation and appeal employees have.

1.2 Make employees aware of the rules.

• Give each employee a copy of the rules and explain them. It is difficult to discipline employees for breaking rules they are not aware of.
• You must include the procedures in the written terms of employment or explain where a copy is available.

1.3 Most offences will lead to a series of oral and written warnings before any dismissal.

• Investigate the circumstances before taking any formal action.
• Typically, you might give an employee one spoken warning and two written warnings before dismissal. Spoken warnings will often be removed from an employee's disciplinary record after six months, and written warnings after 12 months (if there are no further disciplinary offences).
• A formal warning should include a time limit for achieving improvement, and an explanation of the consequences.
• Apply the rules fairly and consistently. An employee who can show that you applied the rules inconsistently may be able to claim unfair dismissal (see 4).
• Keep written records of all disciplinary action you take. Include a record of any steps you have taken to investigate and address the cause of the problem.
• All employees have the right to be accompanied by a colleague or trade union official at any disciplinary hearing.
• Remind employees of their right to explain their conduct or suggest counter-proposals.

1.4 'Gross misconduct' can provide grounds for summary dismissal, but the statutory procedure must still be followed.

• Gross misconduct typically includes theft, fighting or physical assault, drunkenness or drug-taking, wilful damage to company property, and intentional or reckless disregard for safety rules.
• In most cases follow the procedures outlined in the Acas Code of Practice: review the evidence, provide a written explanation of the problem, have a face-to-face meeting, and give an opportunity to appeal.
• In exceptional circumstances, you might be justified in not following the Code of Practice but you should be aware that an employment tribunal can increase any award by 25 per cent if you do not.

1.5 Employees have the right to appeal against all disciplinary decisions.

• State the name or job title of the person responsible for hearing any appeals.
• Where possible, the person dealing with the appeal should not have been involved at any prior stage of the proceedings.

1.6 Give employees the appropriate notice, unless they have been summarily dismissed.

• After a month's service, employees have a statutory entitlement to one week's notice (unless summarily dismissed). After the first year, an employee is entitled to an extra week's notice for each additional year of continuous service up to a maximum of 12 weeks' notice (after 12 years of service).
• The contract of employment may entitle the employee to a longer period of notice.

1.7 Provide written reasons for the dismissal. You are legally required to do this:

• Within 14 days of a written request from an employee who has completed at least one year's continuous employment.
• Whenever you dismiss an employee who is pregnant or on maternity leave, and regardless of how long she has worked for you.