Dismissalby Kate Russell
Employers have the right to manage employees who fall short of the mark. If an employee fails to observe an organisational standard, then ultimately dismissal may be the only option. Whatever the situation, the employer must use a fair procedure and behave reasonably in all the circumstances.
Employees who meet various qualifying conditions have the right not to be unfairly dismissed and the penalties for employers who don’t behave fairly and reasonably can be very high.
It’s also important to remember that we have an ethical responsibility as employers. We should make sure that all avenues have been explored – for example, training, proper standard setting, coaching, feedback, monitoring and/or considering alternative employment – before taking the final step and dismissing.
The requirements relating to conduct and capability dismissals are largely found in the ACAS Code of Practice 1 which is intended to provide basic practical guidance to employers, employees and their companions and sets out principles for handling disciplinary and grievance situations in the workplace. The code does not apply to dismissals due to redundancy or the non-renewal of fixed term contracts on their expiry, though you should also make sure you follow fair procedure if you dismiss for those reasons.
While the code does not have force of law, it is a statutory code and tribunals are required to have regard to it in considering claims.
The code is not prescriptive and allows employers a certain degree of flexibility. One of the significant changes under the code is that a minor failure to follow procedure does not automatically make a dismissal unfair. There is still provision to allow an adjustment in compensation, up or down, by up to 25 per cent for unreasonable failure by either party to comply with any provision of the code. So an employer who has unreasonably failed to follow its procedures may face an increase in the compensation it has to pay by up to 25 per cent. Conversely, if an employee has unreasonably failed to follow the guidance set out in the code, the tribunal can reduce any award they have made by up to 25 per cent.
See also Discipline and Grievance.
It is important to ensure that the disciplinary procedure followed is fair and the ACAS Code sets out a number of elements which constitute fairness. Both employers and employees should
- Raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions
- Act consistently.
In addition, employers should
- Carry out any necessary investigations, to establish the facts of the case
- Inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made
- Allow employees to be accompanied at any formal disciplinary or grievance meeting
- Allow an employee to appeal against any formal decision made.