Dismissalby Kate Russell
Summary dismissal is dismissal without notice or pay in lieu following an act of gross misconduct. This is determined by the organisation and an employer should list acts which constitute gross misconduct in his disciplinary procedure. Gross misconduct is an act which constitutes a fundamental breach of contract by the employee and examples are given in Conduct dismissal. In a case of gross misconduct, the employer may dismiss an employee without notice but must still follow all the usual disciplinary procedures, even if the latter admits to the gross misconduct.
The employee is entitled to his pay to the date of the dismissal and any holiday accrued but not taken. If the contract contains a clause that allows the organisation to withhold holiday pay in the event of a dismissal for gross misconduct, it can only be withheld in respect of holiday which exceeds the statutory minimum (four weeks).
M worked for W as a steward. He had a term in his contract that, if he was dismissed on grounds of dishonesty, then the amount of pay for holiday accrued but not taken would be nil. M was dismissed, having admitted taking money from his employers. At the time of the dismissal he had accrued 26 days’ holiday. W refused to pay this, and M brought a claim in the employment tribunal. The Working Time Regulations (WTR) state that an employee is entitled to be paid in lieu of annual leave accrued but not taken at the time their employment ends. The court decided that an agreement not to pay the minimum statutory annual leave accrued under the WTR on the termination of an employee’s contract of employment was void.