When dealing with employees, there are five potentially just grounds for dismissal, which are set out in the Employment Rights Act 1996. In order to dismiss fairly, an employer must establish that one of these potentially just grounds applies. and, having established that reason, they must act reasonably when terminating for that reason, which includes, most importantly, due process.
In some circumstances an employer may not follow a full procedure, for example when the employee does not have at least two years of continuous service, but we always recommend that a club take legal advice if it is considering such. approach. This article assumes that the employee has more than two years of continuous service and here we focus on the potentially just cause of misconduct and its associated procedure.
- Types of Misconduct
Misconduct is potentially just cause for firing an employee.
It is good practice to have disciplinary rules in the workplace that identify unacceptable conduct, the degree of seriousness with which it is viewed and how acts of misconduct will be dealt with.
Misconduct can be classified as “misconduct” or “serious misconduct”. Serious misconduct is the most serious type of misconduct, such as theft or violence, warranting immediate termination, the occurrence of which means the club should no longer be required to keep the employee in their job. An employer can fairly dismiss for serious misconduct without warning and without notice. Disciplinary proceedings should always be followed, with hearings conducted and evidence gathered, as outlined below.
In the case of less serious misconduct, an employee must receive at least one relevant warning before termination. In the absence of serious misconduct, the dismissal of an employee for a first offense is likely to be abusive. In the absence of serious misconduct, employees will be entitled to notice of termination with due pay.
- Loyalty of dismissal
In order for a club to fairly dismiss for misconduct, the identified fault must be the real reason for the dismissal and the club must:
- At the time of termination, sincerely believe that the employee is guilty of misconduct and have reasonable grounds to believe that the employee was guilty of the identified misconduct;
- By the time the employer formed this belief on these grounds, it had conducted as many inquiries as was reasonable in the circumstances;
- Acted reasonably in terminating for this reason, which includes taking into account all relevant circumstances (such as the employee’s background, history and record) and whether there are other options to dismissal; and
- Have followed a fair process which includes adherence to the ACAS Code of Practice on Disciplinary Proceedings (ACAS Code).
It is fundamental, in cases of misconduct, that no decision is made regarding the termination of the employee until all investigations have been completed and the employee has been given an opportunity to do so. make their case. The decision should therefore not be prejudged.
According to the ACAS Code, before dismissing for misconduct, an employer must follow the following procedural steps:
(1) investigate the problems;
(2) inform the employee of the problems in writing so that he is aware of the case against him and that he risks being fired;
(3) invite the employee to a disciplinary hearing or meeting, allowing him the right to be accompanied;
(4) conduct a disciplinary hearing or meeting with the employee, allowing the employee to make representations;
5 ° inform the employee of the decision in writing;
(6) give the employee a right of appeal; and
(7) act in accordance with any internal disciplinary procedure.
For the purposes of the above procedure, some preparatory steps are therefore recommended as follows:
- Check the club’s disciplinary policy requirements.
- Choose an appropriate investigator.
- Appoint different people at each stage (ie investigation, disciplinary meeting and appeal meeting) in ascending order of seniority (so having the power to overturn the decision is necessary).
- Respect deadlines in disciplinary policies. If possible, avoid using someone with significant planned absences as investigator or chairperson for the disciplinary or appeal meeting when this could delay the investigation.
- Take into account the interaction with any related process (for example, any related grievance process).
A reasonable investigation is a key part of the fairness test in dismissals for misconduct. Where a reasonable investigation has not been conducted, employees may be able to argue that their termination was unjust on the grounds that the charge against them was not accurately formulated and that they were unaware of. the cause to which they had to respond, or that the employer did not have reasonable grounds to believe in their guilt. This will make an otherwise fair dismissal unfair. Care should therefore be taken to ensure that all issues, especially those raised by the employee (even at a late stage), are investigated. This will likely include interviewing the employee at an early stage, all relevant witnesses, and collecting relevant documents / information.
- Dismissal as a sanction
Dismissal must be a reasonable sanction to impose. Even when the club has conducted a reasonable investigation and followed a fair process, it still has to persuade a labor court that the dismissal was a reasonable sanction in all the circumstances. The labor court will ask whether the employer acted within the range of reasonable responses in considering the misconduct to be sufficient grounds for termination.
The following circumstances may be relevant in deciding to terminate:
- The relevant context of the offense, including previous warnings or similar incidents (see below);
- The employee’s seniority;
- The employee’s previous disciplinary record;
- Whether the employee admitted the violation and showed remorse; and
- Whether the employee was provoked or acted under the effect of stress.
The club must act consistently when deciding to dismiss similar behavior treated in the same way. The club must therefore consider the sanction that has been imposed on other employees in similar circumstances and act in accordance with the previous decisions. Any difference in treatment will have to be justified, for example on the basis of extenuating circumstances. Clear workplace rules and training can help managers make consistent decisions.
Employers should be aware of their duty to consider all the circumstances and other termination options (such as final warning or demotion, where contract permits), as an employment tribunal can always conclude that the termination was outside the range of reasonable responses, even in the event of a finding of serious misconduct.
For more details on employment law matters or any other legal matters affecting your golf club, please contact Alistair Smith at NGCAA on 01886 812 943 or [email protected]