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Unfair dismissal: misconduct

January 17th, 2010

 Unfair Dismissal: Misconduct

In considering whether a dismissal for misconduct was fair an employment Tribunal must consider both the disciplinary offence and the way in which the employer went about deciding to dismiss.


The Offence

In principle an employee should not be dismissed for a first disciplinary offence unless they have previously been warned. It would be unusual for a Tribunal to find it fair to dismiss for an act of misconduct if the employee was not already on a “final written warning.”

The exception to the need for a warning is if the employee had committed an act of “gross misconduct.” This means that an employer is justified in dismissing even if the employee has not had a disciplinary warning before. It also means the employer does not need to give the employee notice of termination.

Gross misconduct is misconduct which objectively considered is capable of destroying the trust and confidence in the employee. It covers obvious serious misconduct such as dishonesty or violence, but in less obvious cases, as long as an employer can show:

1. That the employer can justify taking it so seriously, and
2. That the employee should have been aware how serious it was;

Then the employer is entitled to treat it as an act of gross misconduct.

Normally an employer can show that an employee should have known how serious it was if the employee has been given a contract, procedure or written notice (before the misconduct occurred) stating that the employer considers misconduct of that type to be gross misconduct.


The way in which the employer goes about dismissing

If an employer considers the misconduct serious enough to justify dismissal, either because it is such a serious matter, or because the employee is subject to a final written warning, there still needs to be an investigation by the employer. The investigation should include:-

1. Interviewing any relevant witnesses (and making a written record of what each one says)

2. Considering any relevant documents

3. Inviting the employee to a disciplinary hearing and letting the employee know in advance:-

3.1 The specific allegation

3.2 That the decision could result in dismissal

3.3 The evidence against the employee (copies of statements and documents in 1 & 2 can be provided)

3.4 The employee’s right to bring a Union rep or work colleague to the meeting

4. If the employee is found to have committed gross misconduct, consideration of any mitigating factors, the employee’s work record and whether there is any other penalty appropriate (e.g. a final written warning)

5. Informing the employee of the right to appeal.


The employer must also make sure that the process is conducted as fairly as possible. This means the employee should be given a fair hearing. So if possible, the person who hears the disciplinary hearing should not be a witness to the misconduct itself, and the person who carries out the appeal should not have been previously involved in the disciplinary process. The person who investigates the offence before the disciplinary should ideally not be either a witness to the misconduct nor the same person who carries out either the disciplinary or the appeal.

The extent to which the employer can comply with these standards depends on its size and administrative resources, and just because an employer does not comply with every requirement does not automatically mean the dismissal is unfair. If an employer falls short of these standards it is up to a Tribunal to assess whether the extent of the employers shortfall is serious enough to render the dismissal unfair.


Tips for finding a solicitor to deal with an unfair dismissal claim

Specialist legal knowledge and experience is a good start, but to “get the edge” it is useful to find a solicitor with experience of representing clients at Employment Tribunals, particularly at the Employment Tribunal where your case is likely to be heard. This is because familiarity with the way a Tribunal is likely to assess particular cases and particular circumstances helps effective advice and preparation right from the start.

Most of our experience here at John Halson solicitors is based in representing clients at the Liverpool Employment Tribunal which covers claims arising from people who have worked in north and central Cheshire including Chester, Warrington, Northwich, Middlewich, Winsford, Tarporley, Ellesmere Port, Great Sutton; and Merseyside including Liverpool, Birkenhead and the Wirral,  Widnes, Runcorn, St Helens, Kirkby, Maghull, Skelmersdale, Ormskirk, Southport, and Formby.

We also regularly appear in the Manchester Employment Tribunal and occasionally in the Leeds, Birmingham and Shrewsbury Tribunals.


Links: Unfair Dismissal – Misconduct

ACAS guidance

ACAS Code of Practice

Free Employer’s seminar



Please note that the information on this page is intended to be a guideline and is therefore a summary of the law only and not a complete guide. Before taking any action based on this information you are strongly advised to take legal advice. Whilst every effort has been made to ensure that the information contained on this page is up to date and accurate, no guarantee can be given to this effect.

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