As an employer, you will at some point have to face dealing with a disciplinary situation arising from alleged misconduct on the part of one of your staff. Most employers who lose at tribunal do so not because they did not have a fair reason to dismiss but because they failed to follow a recognised fair procedure.
Can an employee claim unfair dismissal?
Generally, employees with less than 2 years’ service cannot claim unfair dismissal as there is a rigid qualifying period. However, there are several categories of claim which do not require the employee to have 2 years’ service and whilst these are largely confined to discrimination claims, there are other categories which might catch employers out.
When faced with enquiries from employers about terminating employment of an employee with less than 2 years’ service, we always ask whether the employee has made a complaint recently about anything because this might place them in a protected category.
The safest course of action is always to carry out an investigation, conduct a disciplinary hearing together with a right of appeal before dismissing an employee. In essence, the employer should follow the Acas Code of Practice.
The Acas Code of Practice consists of the following steps:
The Acas Code of Practice in this area sets out what must be done and this can be summarised in the following basic steps:
- If you think it is a risk having the employee around whilst the investigation takes place, you may suspend him or her for no longer than is necessary.
- You must then investigate the matter by interviewing any witnesses and taking statements.
- You must then write to the employee setting out the allegations in detail and providing any supporting evidence.
- You must invite the employee to a disciplinary hearing at which they may be accompanied by a trade union representative or colleague.
- You must then hold the meeting and ensure that notes are taken. You must then write to the employee setting out the action which is taken whether this amounts to a written warning or indeed dismissal.
- Finally, the employee must be offered a right of appeal and this should be to somebody who is more senior and who has not been involved already.
If you follow these basic steps then you will have a much greater chance of defending any claim in the employment tribunal. Be aware that the above is only a summary and we can provide comprehensive advice along every step of the way
If your employer is concerned or unhappy about your work, they may look to take disciplinary action against you. Examples of possible concerns include: the standard of your work, your behaviour at work and your level of absence from work.
Your employer is not obliged to discuss matters with you informally. Instead, they may decide to take disciplinary action formally, especially if the matter is serious.
If your employer decides to take disciplinary action, they should set out in a letter the alleged misconduct or poor performance and the possible consequences you may face.
Put simply, a grievance is a complaint. If you are having a problem at work (for example, you are unhappy with something you have been asked to do as part of your job), you are concerned about an issue that has arisen at work (for example, the terms of your contract of employment have been changed) or you wish to make a complaint about a colleague or a manager (for example, you feel you are being bullied by a colleague or a manager) then you can raise a “grievance”.
Raising a grievance is putting your problem, concern or complaint to your employer informally at first (by perhaps having a private word) or if that fails, more formally, perhaps in writing which will allow them to investigate and hopefully resolve your complaint.