The problem
You manage a large hotel and have just discovered a fight has taken place between two staff members. Both employees have worked for you for more than five years and fighting has never been a problem with either of them before. What should you do?
Under the Employment Rights Act 1996, a dismissal will be unfair if not for one of five potentially fair reasons: conduct, capability, illegality, redundancy or "some other substantial reason". Generally speaking, only employees with service of one year or more are protected against unfair dismissal, subject to exceptions. If your actions are somehow discriminatory, no minimum service is required.
Fighting is a conduct issue: any dismissal must be a reasonable and proportionate response to the alleged misconduct. For a dismissal to be fair, you must show you had a genuine reason to dismiss and that a fair and appropriate procedure was followed before dismissal.
Additionally, the Employment Act 2002 (EA2002) introduced statutory minimum disciplinary and grievance procedures, which will come into force on 1 October 2004. After that, failure to follow at least these basic procedures when imposing sanctions will result in any consequent dismissal being automatically unfair - the tribunal won't consider the reasonableness of your actions.
EXPERT ADVICE
Best practice dictates that you should always start by investigating any incident of misconduct. Take statements from the employees concerned, and other witnesses wherever possible, to ascertain what happened and why. Failure to carry out a full investigation may result in an unfair dismissal if it is subsequently discovered that any consequent disciplinary action was inappropriate in the circumstances.
If, following your investigation, you feel there's a case to answer, proceed to a disciplinary hearing. Any contractual disciplinary procedure should be followed.
You should invite, in writing, both employees to separate hearings, giving them sufficient time to prepare. The letter should specify the nature of the allegations, confirm whether dismissal could result and advise them of their right to be accompanied by a work colleague or trade union official.
Copies of any witness statements or other documentary evidence should be enclosed. If possible, someone not involved in the investigation should chair the hearing. You must give each employee the opportunity to explain his version of events and raise any mitigation.
When determining the appropriate disciplinary penalty, take into account all the individual circumstances of the case, including whether this may have been a one-off incident. Employees should be treated consistently and, although mitigating circumstances and even long service can be considered, fighting should still be treated as a serious offence to prevent any watering-down of the disciplinary rules.
Depending on the circumstances, a final written warning may be appropriate. The employee should be advised that fighting is not tolerated, and that further such conduct may result in dismissal. Immediate dismissal may be a reasonable response if the incident was serious, and the employees unrepentant. You should offer each employee a right of appeal against your decision.
Check list
Make sure that you have policies in place to deal with disciplinary issues. These should be separate from the contract of employment; a non-contractual policy will provide more flexibility.
Make sure your employees are aware of any written policies and implement them consistently.
When disciplinary issues arise, ensure you carry out a full investigation before taking any disciplinary action. When imposing penalties, ensure that all individual circumstances are considered and try to be consistent. Always offer a right of appeal against penalties.
Ensure that all dismissal, disciplinary and grievance procedures are in line with the statutory minimum procedures, under EA2002, by 1 October 2004.
Contacts
Marie Allen, Steeles (Law), 01603 274700, mallen@steeleslaw.co.uk