Are you being subject to a disciplinary process and being fired by your employer? This can be an extremely distressing time for an employee, regardless of whether the outcome is dismissal. Whatever the disciplinary action, it is important that an employer adheres to a reasonable procedure.
What happens when an employee is subject to an investigatory process?
It is usual for an employer to invoke an investigation where issues have arisen in respect of an employee. The purpose of the investigation is to enable an employer to better understand what the problem is and whether there is any supporting evidence. This is not intended to be a disciplinary measure, although an employee may feel that it is, particularly where they have been suspended pending the outcome of the investigatory process.
What will an employer do if the investigation outcome is negative?
If the outcome of the investigation is unfavorable, an employer may escalate the matter to a disciplinary level. If this is to be the case, an employee should receive a letter confirming, for example, the time, date, and venue of a disciplinary meeting. It should also clearly state what the allegations are (together with supporting evidence) and that they have the right to be accompanied by a work colleague or a trade union representative. Where appropriate, gross misconduct should be stated as a possible outcome.
What will happen at a disciplinary hearing?
By the time of the hearing, an employee should be clear as to what the allegations are and the evidence that an employer seeks to rely upon. There should be a reasonable period of time to enable an employee to prepare for the disciplinary hearing. The hearing will explore the allegations in further detail and will also serve as an opportunity for an employee to raise any comments, including mitigating circumstances.
What if the employee is dismissed?
There are a number of disciplinary sanctions that might follow a disciplinary hearing, however, where there has been a finding of gross misconduct, an employer may decide to terminate employment with immediate effect. This will mean that there will be no entitlement to either work a notice period or to be paid in lieu. An employer should send a written explanation of the decision.
What is a gross misconduct?
A disciplinary procedure should outline a list of non-exhaustive examples of what might constitute gross misconduct. Such examples might include theft or striking a colleague.
Can an employee only make a claim of unfair dismissal?
An employee is able to make a claim for other areas of dispute in addition to dismissal, for example, because there was a discriminatory reason (such as a disability) or all monies due have not been paid.
Is there anything that an employee can do if they have been dismissed?
An employee should be allowed the opportunity to appeal the decision of dismissal. The appeal will usually be heard at an appeal hearing and chaired by someone not previously involved in the matter, in order to avoid conflict issues arising. Where the decision remains as dismissal, there will usually be no further recourse to action within the internal disciplinary process.
What can an employee do when the disciplinary process has been exhausted?
When the disciplinary process is at an end, an employee may decide to take further action. Prior to issuing a complaint at an employment tribunal, there is a mandatory requirement for an employee to appoint the Advisory, Conciliation and Arbitration Service, more commonly referred to as ACAS (early conciliation). ACAS is able to be involved for a specified period of time to enable a resolution to be explored. Where this is unsuccessful, an employee may take steps to issue a claim. It is important that a claim is issued within the correct time period for doing so. An employee must also satisfy the relevant criteria in order to present a claim of unfair dismissal, for example, that they have been employed for a continuous period of two years. However, it does not necessarily follow that they will be unable to present different kinds of claims.
Can an employment claim be avoided?
We find that it is fairly common in practice for an employer to explore the possibility of early settlement, either prior to the disciplinary process, during it or afterwards. It does not necessarily follow that an employer will do so as an admission of liability, but rather for commercial reasons. Where terms are agreed, an employer may ask an employee to enter into a Settlement Agreement.
What is a Settlement Agreement?
A Settlement Agreement is a confidential document that will prevent an employee from pursuing their employment rights in return for a financial settlement. There can be additional non-financial incentives for an employee too. From an employer’s perspective, it is important that the Settlement Agreement is drafted properly to ensure that the business is sufficiently protected. It is also a mandatory requirement that an employee instructs a recognised adviser, such as an employment solicitor, to review the Settlement Agreement with them. An employer would be expected to pay a contribution towards the legal fees associated with the review of the Settlement Agreement (on the assumption that it is ultimately signed).
If you would like to discuss any of the issues in this blog, please contact us.
