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Procedural flaws in dismissal process – unfair dismissal ?

Ben Jones - Partner & head of employment law

Ben Jones – Partner & head of employment law

When an employer is considering taking disciplinary action against any of its workforce it is important that they seek legal advice from an early stage. The ACAS code of practice on disciplinary and grievance procedures replaced the previous statutory dismissal and disciplinary procedures in 2009. It provides guidance for companies on how to manage disciplinary and grievance situations.

The ACAS code

Whilst the code is not strictly binding it is always good practice to follow it. The code outlines basic procedures for companies to adopt and an Employment Tribunal will bear this in mind if they have to decide if an employee has been fairly dismissed for misconduct or poor performance. It goes a long way to show that an employer has adopted a fair procedure. Compensation can also be adjusted by up to 25% if an employer has failed to follow the code.

The code contains, amongst other things, the following provisions:

  • that before dismissing an employee for misconduct or performance the company should carry out a proper investigation;
  • the company should then write to the employee outlining the issues/allegations;
  • a disciplinary hearing should then be held;
  • the employee should be informed in writing of the decision, providing a right of appeal.

Warning or dismissal ?

It is normally the case that if an employee has committed a breach of their contract and/or has a performance issue then a first written warning would be appropriate. Summary dismissal will only be appropriate for acts of gross misconduct. Gross misconduct is generally defined as an act which is so serious as to justify summary dismissal – normally this will include incidents such as theft, dishonesty, violent, threatening behaviour, breaches of trust, harassment or serious issues of discrimination and intoxication of work. These are just some examples, every case will be determined on its own merits.

If the case is not for a gross misconduct offence then it will normally be appropriate to issue a first written warning, and if it is a performance issue thereafter an opportunity to improve with a staged performance plan. If it is a disciplinary issue a first written warning and thereafter a second warning would normally entitle termination.

It should always be remembered that it is not the Tribunal’s role in practice or in law, to substitute it’s own approach or opinion for that of an employer. As long as the employer acts within a range of objectively reasonably ways, in terms of procedure and substance, the employer should not be found top have unfairly dismissed.

Recent case example

In the recent case of Buzolli – v- Food Partners Limited (2013 UKEAT – 0317-12), the Employment Appeal Tribunal had to decide whether a decision to dismiss an employee was fair, despite the fact that it had not followed completely the ACAS code. The employee in question, Mr Buzolli, was disciplined for failing to attend work because he was under the influence of alcohol. He was provided with a Stage 3 written warning under the Employers Internal Disciplinary Procedure which would remain on his personal file for 12 months. The policy stated that further breaches of conduct in that 12 month period would result in dismissal. Mr Buzolli committed a further offence within the 12 months and was dismissed on notice.

Dismissal fair despite procedural flaw

He appealed the decision on the grounds that the warning letter provided to him did not contain a statement that further misconduct might result in dismissal, it was not referred to in the disciplinary hearing or dismissal letter and that the letter inviting him to attend a disciplinary.

It seems clear on the face of it that these actions are in breach of the code. That said, the Employment Tribunal confirmed that the decision was fair despite these procedural flaws. It held that it should have been clear to Mr Buzolli that the significance of the final warning meant that termination could be a possibility. This was made clear in the firm’s disciplinary policy and procedure as well. The Tribunal held that taking a global view and looking at the company actions they had acted reasonably.

ACAS code is for guidance and not binding

The case shows that the code is set down as guidance to companies. It does highlight the importance of clearly drafted policies and procedures which can assist in the event that any disciplinary measure is challenged by an employee. It remains that it is best practice to follow the code and that legal advice should be sought before embarking on any disciplinary process.

If you are an employer dealing with a disciplinary or grievance, get in touch with me for a free initial discussion. Taking advice at the right time can avert the risk of an expensive Tribunal case and potential award later.

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