All companies value and appreciate their employee’s, as they are, in essence, the driving force of all businesses. But what happens when they seriously over step the mark? Most companies will have their ‘Gross Misconduct’ clause in their employee contracts which can apply to various wrong-doings i.e. theft, offensive and physical behaviour, dishonesty, breaches of health and safety, alcohol/drug abuse etc. All can hope that these will never be committed but unfortunately, they can do and when they do, serious action needs to be taken. So can you sack them on the spot? … No is the answer.
It is an age old myth that you can terminate a staff’s employment then and there. However, there is no situation that gives you an automatic right to fire them on the spot. This instantaneous act could in fact leave you in a spot of bother and facing a possible unfair dismissal case.
Employers are expected to follow the Acas Code of Practice on Disciplinary and Grievance Procedures when faced with any form of misconduct and must investigate the allegations before taking permanent action. These procedures must also be fair and reasonable. If not, an unfair dismissal case could be imminent.
By now, you maybe considering the fact that as of 06th April 2012, employee’s now have to have completed a continual service for at least 2 years before they can claim unfair dismissal? This is correct, but the Acas code or disciplinary procedure should not be ignored as from day one, all employee’s have the right to claim “automatic” dismissal. That’s right, so you might not be guilty of unfair dismissal but a claim “automatic” dismissal could be made against you, especially if the employee goes on to accuse you of discrimination (i.e. age, gender, race, disability etc).
So, to avoid all of this, it’s important to make sure a fair dismissal procedure is followed through. You may take different approaches for long serving employee’s to short service employee’s but both should at the very least consist of an investigation, a meeting/disciplinary hearing prior to the dismissal and the provision of a right to appeal. After these have been conducted, you can then continue to terminate the employment with immediate effect. This procedure with provide you with a clear paper trail and eliminate any possible accusations or claims of unfair or automatic dismissal and/or discrimination.
However, this does not apply to temporary agency workers. There is nothing stopping you from terminating their services through the agency immediately without any back lash or legal cases.
So to sum up, it could be rather dangerous and costly for you as an employer to fire an employee on the spot. If the Acas code of practice and your own disciplinary procedure aren’t followed correctly and properly, you could very well find yourself in a spot of trouble. So avoid this by being sensible and thorough and you’ll avoid any claims or tribunals.
For further advice and information on gross misconduct or employee termination, just get in touch.
Information taken from ‘Tips & Advice Personnel’ (article) and ‘Tips & Advice – Employment Myths Shattered’ (book)