On the rebound - how to stop a dismissal from backfiring

There is nothing more upsetting to an employer than dismissing an employee for a clear act of misconduct and then risking a successfully argued Employment Tribunal claim against them.

The most robust way to prevent such frustration is to have a clear and published Company Disciplinary Policy and Procedure which reflects the ACAS Code of Practice, and to ensure that all managers follow it carefully.

Most Tribunal claims succeed because of a breach of the Code, or due to some flaw in the procedure followed, even if there is no dispute about the alleged misconduct having occurred. It is therefore vitally important that all managers understand the procedure to be followed and are trained to do so.

Essentially, the procedure must be fair and consistent and be seen to apply natural justice. In all cases, a full investigation must be carried out before any decision to discipline an employee is taken. Not all alleged misconduct will automatically lead to disciplinary action. It could be a performance issue that could be resolved with further training, or poor attendance or timekeeping that may need different responses and remedies.

However, when it is misconduct, the outcome should reflect the seriousness of the act and usually result in some level of written warning being issued. At least two written warnings should exist on the employee's file before it could be considered safe to dismiss them.

All employees suspected of committing any act of misconduct in the workplace must be given the facts, in writing, of all of the evidence established in the investigation of the alleged misdemeanour. They must also be invited, in writing, to a formal hearing where they can respond to the allegations made against them. Full minutes should be taken at the hearing, and a copy should be issued to the employee with the decision letter.

This process also applies to acts of Gross Misconduct, where the outcome could lead to summary dismissal (not instant dismissal as is commonly thought, the main difference being that the employee forfeits their right to notice). Your company handbook should list examples of what would be deemed Gross Misconduct. This list can never be exhaustive, but will indicate when summary dismissal might be appropriate.

All employees have the right to be accompanied at a disciplinary hearing by either a work colleague or a representative of a recognised trade union. They also have the right of appeal against any disciplinary sanction or warning applied.

The procedure requires absolute fairness and impartiality throughout, and therefore there must be a separation of powers between the managers acting as Investigating Manager, Disciplining Manager and Appeals Manager.

BOSS offer ‘Dealing Effectively with Discipline and Grievance in the Workplace' workshops which can be delivered on site at your premises for up to eight employees. Contact your regional HR Adviser for more information or call 0845 450 1565.