There are affectively two types of conduct
dismissal.
- Dismissal for misconduct after receiving
previous warnings for misconduct.
- Gross misconduct dismissal that only
requires one event which if it amounts to gross misconduct
is capable of giving a ground for dismissal on this basis.
An example of misconduct
Theresa Green works for Fred Thimble
Makers Limited. Theresa has worked at the Company for
three years as a Secretary/Receptionist. In the last
year, she received a verbal warning following the disciplinary
process for lateness. She received a written warning
for being rude to a client after a disciplinary process.
She received a final written warning again for lateness
and a couple of weeks after receiving the final written
warning she is late again. Provided the proper processes
are used in these type of situations, the Company can
dismiss for misconduct. She is already on a final written
warning. The final written warning is normally in force
for one year. She has committed an act of misconduct.
It does not have to be connected with the reason for
the final written warning. Therefore, the employer
could start a disciplinary process and legitimately
dismiss Theresa for being late. |
The dismissal would have to be with notice
which would mean that she would be entitled with three years
service to three weeks notice plus holiday pay when she was
dismissed and of course she would be entitled to the right
of appeal.
An example of gross misconduct
Rick O’Shea is a Security
Guard at Fred Thimble Makers Limited. He was on duty
at night on his own as a Night Watchman. He decides
whilst he is on duty that he is going to have a drink
of alcohol. The Company’s rules are that no one
can drink on duty and he is found stinking of alcohol
at 7.00 a.m. by his Supervisor when he comes to open
the premises. Is this capable of amounting to gross
misconduct? Yes it is because there is a clear note
that drinking on duty is not acceptable. He is unfit
through alcohol and he is also sleeping on duty so
he is not doing his job and he is neglecting his job.
Again, provided the correct process is followed, he
could be dismissed for gross misconduct this time with
no notice although he would still be entitled to holiday
pay. |
This is the difference between misconduct
and gross misconduct. In order for something to amount to gross
misconduct it has to be so serious as to go to the root of
the contract. Various examples of gross misconduct include:
- Fighting
- Being drunk on duty
- Stealing
- Harassing people
- Subjecting people to racial abuse
- Failing to obey reasonable management
instructions
There are many more examples of things that
can amount to gross misconduct and this list of examples is
by no means exhaustive.
Lets now deal with our gross misconduct
dismissal for a misconduct dismissal which can be unfair.
Remember I refer to Theresa. The same example,
she is on a final written warning however instead of going
through a disciplinary process, her Manager sacks her for misconduct.
By failing to go through the disciplinary process, that has
rendered the dismissal unfair.
Another example would be that in Theresa’s
case:
- They go through a disciplinary process
- Give her the right of representation by a work colleague
- Give her written reasons for the Disciplinary Hearing
and sufficient information to answer the allegation
at the hearing.
- At the hearing, she says “I was late this occasion
because I witnessed a road traffic accident and I was
assisting a bystander who was slightly injured. I also
gave my details to the Police Officer who attended”.
- If the person dealing with the disciplinary did not
investigate that and decided he believed she was lying,
then that would be unreasonable.
- The person conducting the Disciplinary Hearing could
obtain the details from the local Police or ask her
to find out the Police Officer’s details so he
could check it himself.
- Failing to conduct a reasonable investigation can
make a dismissal unfair. This is one of the tests that
the Tribunal will apply in determining whether a dismissal
is unfair or not, under a case called Burchall -v-
British Home Stores.
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I now go back to Rick, our second example.
Rick at his Disciplinary Hearing admits consuming
alcohol but he said his daughter had just given birth to his
first grandchild. He told the Night Foreman and the Night Manager
and they had had one drink to celebrate. He had worked for
three consecutive weeks on nights for seven days a week, 12
hours per day.
This is a difficult one. There are clearly
mitigating factors particularly to the falling asleep on duty
but in the letter of the rules, all three of them should have
been dismissed. It is not for a Tribunal to substitute its
on view on whether dismissal is appropriate or not. The decision
to dismiss may have been harsh but it could still have been
within a reasonable range response for an employer to do.
In Rick’s example, if it had been the
case that he had simply been found asleep, then the situation
would change because without the alcohol and with the fact
he had been required to work excessive hours over a long period,
then in these circumstances, I believe a Tribunal would not
consider that to be a reasonable dismissal and in fact, the
employer would be in breach of the Working Time Regulations
and the dismissal would be unfair.
Having considered some examples, let’s
just reaffirm what the position is as far as the Tribunal in
determining whether a conduct dismissal is fair or not.
There are three
tests.
Test number
one - was the investigation reasonable conducted?
Test number
two - the finding of the investigation caused the
decision maker to have a reasonable belief that the act was
committed which was complained of
Test number
three - was the response of the employer reasonable
in all the circumstances?
If an employer does not allow an appeal,
that in itself will cause an unfair dismissal.
Under the new Regulations which came
into force on the 1st October 2004:
- The employer is obliged to put the allegations
in writing
- Give the employee the right to be accompanied
by a work colleague or a Trade Union Representative
- The employer must give a right of appeal
to any disciplinary action.
- Failure to do these basics will cause
findings of unfair dismissal and an entitlement of up to
four weeks pay just for those failures and not taking into
account any mitigating or contributory factors.
This concludes the brief introduction into
unfair dismissal but please be aware that it is a brief introduction
and does not attempt to answer all potential questions on unfair
dismissal but it is there for a general guide as specific most
frequently asked questions and deal with other queries you
may have.
Unfair Dismissal Checklist
If you complete this checklist, this checklist
will help purely as a guide to determine whether you should
progress your claim and seek advice.
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