UNFAIR DISMISSAL - 18.09.2008

A procedure to fit the crime

Summary dismissal

When an employee carries out an act of gross misconduct, such as assaulting another member of staff, you can summarily dismiss them, i.e. without notice or pay in lieu of notice. You should then follow the modified disciplinary and dismissal procedure (MDDP). However, delaying the date of dismissal means the MDDP isn’t applicable and should be replaced with the standard (three-step) disciplinary and dismissal procedure (DDP). This was the employer’s error in O’Neil v Wooldridge Ecotech Ltd 2007.

Fatal delay

After an alleged act of insubordination, which would normally be classed as gross misconduct, instead of dismissing the employee quickly, O’Neil’s (ON) line manager thought about the matter overnight before carrying out the dismissal the next day. This action fell outside the parameters in which the MDDP should be used and the dismissal was therefore automatically unfair.

Standard procedure applies

When the Employment Appeal Tribunal (EAT) upheld ON’s appeal they said the two-step MDDP should have been properly followed because gross misconduct entitles the employer to summarily dismiss the employee. But this requires dismissal straight after the misconduct is discovered. The employer, Wooldridge Ecotech (WE), should have then written a Step 1 letter to ON setting out his alleged misconduct as the basis for their conclusion that at the time of his dismissal he was guilty of that misconduct. The matter could then have been dealt with by an exchange of correspondence, unless both parties agreed to meet, following which ON could have appealed. Because of the delay in ON’s dismissal, WE should have followed the more onerous three-step DDP; firstly by writing a Step 1 letter inviting ON to a meeting. If they regarded it as appropriate, ON could have been suspended for a short period whilst the disciplinary process was concluded. Because the DDP had not been followed at all, the dismissal was automatically unfair.

Delay requires investigation

An unforeseen result of the delay was that not only did the standard DDP apply instead of the MDDP, meaning the summary dismissal was automatically unfair, but the lack of an investigation was scrutinised by the EAT. The insubordination had been directed at ON’s line manager, A, who then made the decision to dismiss. There were no other witnesses. Despite the obvious breakdown in the relationship between ON and A, there had been no investigation whatsoever - something required of a potentially fair dismissal for (mis)conduct.

Tip. When an act of gross misconduct takes place it’s necessary to act quickly and dismiss the employee responsible once the misconduct is discovered. The MDDP should then be used. Any delay in following this process could result in a tribunal finding the correct statutory procedure was not followed. If the process is delayed, even for one day, you will have to follow the more onerous three-step DDP.

For a free sample modified procedure, visit http://personnel.indicator.co.uk(PS 10.16.02).