Dismissing Employees

1. Misconduct

A friendly word from a supervisor or manager can resolve most problems (see Everyday workplace policies). 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 must now be at least as good as the statutory minimum (see Discipline and grievance issues).
• 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 are legally required either to include the rules and procedures in the written terms of employment or make it plain 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 within which you expect improvement, and an explanation of the consequences otherwise.
• 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 standard three-step procedure: a written explanation of the problem, a face-to-face meeting, and an opportunity to appeal.
• In exceptional circumstances, you might be justified in using a 'modified', two-step procedure - an immediate written explanation of the problem, with details of why you think the employee is the guilty party, and an opportunity to appeal.
• In very few circumstances - such as where you reasonably believe that there is a serious danger of violence or harassment, to you or a third party, or of damage to property - you are exempted from the statutory procedure.

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

• 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.The maximum statutory entitlement is 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.