In order for a dismissal for gross misconduct to be fair, there needs to be a full disciplinary process followed by the employer which complies with the principles set out in the Acas Code of Practice. Very basically, this involves a thorough investigation, a disciplinary hearing at which the employee is able to put his or her side of the story, a disciplinary decision which is communicated in writing and a right to appeal the decision. Failure to follow a fair process may result in claims by the employee in the Employment Tribunal for unfair dismissal, provided the employee has sufficient service to bring such a claim (103 weeks’ service).
As is inevitable with such processes, things can go wrong along the way and all or some parts of the process may not be completed properly. Once something has been handled incorrectly, it can be hard to undo, but not impossible – as a recent Employment Appeal Tribunal (EAT) case demonstrated.
In this case (Khan v Stripestar Ltd) an employee was dismissed for gross misconduct following a ‘cursory’ investigation and a disciplinary meeting that lasted only six minutes, during which the employee was given no chance to say anything or put his side of the case. The employee was given a chance to appeal the decision and he did so. The employer appointed a senior employee (Mr McCallum) to deal with the appeal, and he held a meeting with the employee who was given a chance to explain his side of the story. Mr McCallum then undertook a thorough investigation into the circumstances. Following the investigation, Mr McCallum considered the evidence and what the employee had said, and decided to dismiss the appeal and uphold to the decision to dismiss the employee.
The employee raised a claim for unfair dismissal. The Employment Tribunal who originally heard the case decided the dismissal was fair, but they were critical of the credibility of the person who conducted the initial disciplinary procedure which they said was “procedurally and substantively unfair”. The employee appealed to the EAT, arguing that the Tribunal was wrong in separating the appeal process and deciding that it was fair, and that they should have deemed the dismissal unfair because of the failures in the process.
The EAT dismissed the appeal, and said that the disciplinary process was still capable of being fair overall where the subsequent appeal process was thorough and reasonably conducted, with sufficient evidence of gross misconduct.
The EAT also emphasised that there are no limitations on the nature and extent of the deficiencies in a first stage disciplinary procedure that can be cured by a thorough and effective appeal.
The decision is good news for employers, but it should not be taken as a licence to get things wrong during a disciplinary process and then hope that the mistakes get rectified by an appeal process. It is always better to get things right during the initial stages and limit the risk of any litigation. Had a thorough process been followed initially, then the employee may not have considered pursuing a claim because there would have been nothing to really challenge on the procedural side of things.
We can help with advice on disciplinary proceedings and appeals, and we are also able to assist with handling such matters where appropriate. Please contact any member of the Pure Employment Law team for assistance (01243 836840 or [email protected]) or click here for more details about our services.