It is well known that in a case of misconduct, the failure to follow a fair procedure, not establishing a genuine belief of the misconduct after a reasonable investigation and not having reasonable grounds to form that belief, could expose an employer to a finding of unfair dismissal at a Tribunal. Such a finding could be costly to defend, result in a significant pay-out of compensation and damage the reputation of the business both internally and externally.
As part of determining whether a decision to dismiss was fair and reasonable, the case law shows a Tribunal will consider if those involved in the disciplinary process followed the points set out below:
- They were clear on whether the alleged misconduct was deemed to be misconduct or gross misconduct and why
- If a complaint or evidence was received from a third party, individual or another employee, a first-hand account was taken from the provider to establish their version of events, the details of the allegation such as the date, time, place of observation/incident, their opportunity and ability to observe the alleged event clearly and accurately
- If the information appears to be a complaint, it is confirmed as such and who it is against before disciplinary proceedings were started
- Provided the evidence and statements (redacted if necessary) to the employee to respond to
- Used the evidence and statements to identify any consistencies or discrepancies with the information provided by the employee when they sought to establish a belief of the misconduct
- Warned the employee that they may be at risk of dismissal. If at the start of the proceedings the employee was warned that a lesser outcome may be given, this should only be increased if new findings or evidence come to light during the proceedings
- Consider the terms of your Disciplinary Policy – a finding of gross misconduct (which could be sufficient for a dismissal) does not mean that the employee has to be dismissed without notice: disciplinary procedures often say “may” dismiss
- Remembered that the Tribunals expect there to be consideration of whether another sanction is suitable, the employee’s employment record and length of service. These should all be referred to when the decision is made and communicated to the employee
- Took full and careful notes of any meetings or discussions – these are contemporaneous notes and evidence of what was said, by who and when and approved by all parties where possible
- Did not “rubber stamp” the decision at the appeal stage. The person or panel hearing the appeal should have decided whether the decision was reasonable or not in the circumstances. They should have critically considered the information which was before the decision maker. They should have identified whether there were any gaps in the investigation or whether follow up enquiries could have been made following the response given by the employee. If there are inadequacies or gaps, these should have been addressed before the final appeal decision was made.
By not following the above the investigation and process could be deemed flawed by the Tribunal and a finding of unfair dismissal given. The remedy for unfair dismissal and wrongful dismissal (if claimed) would then be determined by the Tribunal.