When considering a dismissal we strongly advise strictly adhering to the procedural requirements of the ACAS Code of Practice #1 . Such adherence is not a statutory requirement but a failure to follow the Code will be viewed in very poor light indeed by an Employment Tribunal.
Fair reasons for dismissal
In summary, these are:
- Unacceptable standards of capability or qualification;
- Unacceptable conduct;
- Circumstances where it is impossible to continue to employ the individual legally (because of restrictions or statute);
- Some other justifiable, substantial reason (SOSR);
- By reason of redundancy.
Automatically unfair reasons for dismissal
Some reasons for dismissal are automatically 'unfair', these are for reasons of an employee exercising specific rights in respect of:
- pregnancy: including all reasons relating to maternity;
- family reasons: including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants;
- representation: including acting as an employee representative;
- trade union membership grounds and union recognition;
- part-time and fixed-term employees;
- pay and working hours: including the Working Time Regulations, annual leave and the National Minimum Wage.
Questions to consider before dismissing an employee:
Has the employee been warned about his or her behaviour in the past? Have the disciplinary sanctions been progressively escalated?
Has the employee had the organisation’s expectations in terms of conduct and/or behaviour made explicitly clear to him or her in the past and in writing? Has appropriate training and/or support been given to help the employee meet these expectations?
Has the employee been given adequate time to correct the performance or conduct issues that have been raised in the past? Are warnings on file still current (i.e. been issued within the past 12 months)? Have concerns been addressed with the employee in question promptly, as they have arisen (i.e. not ‘saved up’ over a period of time)? Has consideration been given to any possible mitigating circumstances (e.g. ill health, personal circumstances etc.)?
Does the punishment meet the crime? Is dismissal a proportionate response in the circumstances? Have other, lesser sanctions been considered and discounted for justifiable reasons?
Do you believe that the issue(s) complained about took place? Is this belief based upon reasonable grounds? Have these grounds been subjected to a reasonable investigation? Are you certain that there is absolutely no question of unlawful bias or discrimination influencing the potential dismissal?
Have correct procedures been followed, particularly those laid out in the ACAS Code of Practice? Has the employee been extended the right to be accompanied and the right of appeal? Has consideration been given to the roles of those to be involved with the disciplinary meeting to ensure that the person who investigated the complaint and the person who originated the complaint will not also be the person who decides the outcome.
Is the treatment of this particular employee consistent with the treatment given to all other employees in similar circumstances.
Is all documentation (email exchanges, had written notes, reports etc.) relating to the issue available and has the employee concerned received copies of this documentation before the meeting that could culminate in his or her dismissal? Do you have written witness statements, if relevant and are these dated and signed?