14.09.2018

Gross Misconduct Dismissals – How can we possibly lose?

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Gross Misconduct Dismissals – How can we…

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Why do companies lose tribunal cases where they have dismissed an employee for gross misconduct?  Having an employee commit gross misconduct in the first place is bad enough. But then losing an unfair dismissal claim – or worse, a discrimination claim – just adds salt to the wound and thousands of pounds to the bill.  So why does this happen?

The law on how to properly dismiss an employee for gross misconduct has been around for many many years and yet still employers get it wrong.  This can cost them a huge amount of money both in terms of the compensation they have to pay to the employee, and in terms of management time, stress, hassle, legal bills and damaged reputation.

There are two major reasons why employers lose unfair dismissal claims and both of them can be avoided with good advice, patience and some good old fashioned common sense. 

1.       Procedural Unfairness
It is ironic that with a Disciplinary Procedure that runs for pages and pages, covering all sorts of eventualities, failure to follow a fair procedure is still one of the most common reasons why a company loses a gross misconduct case in an employment tribunal.

I think that this is because many HR Advisers have come to see a dismissal under the Disciplinary Procedure as a ‘tick box’ exercise. This is exactly the opposite of how employment tribunals decide whether a misconduct dismissal is fair or unfair.  An employment tribunal judge never loses sight of the fact that a person, an individual, has lost his or her job.  They look at each case on its individual merits to see whether that dismissal was justified and carried out in a fair and just way.

This was brought home to us recently when the Employment Appeal Tribunal ruled that a company treated an employee unfairly by not delaying a disciplinary hearing for two weeks or so to allow her chosen representative to attend.  The company, frustrated by yet a further delay to the process, decided to press on with the disciplinary hearing despite her request for a postponement.  They stuck to their policy which said that the employee could only ask for the hearing to be delayed up to 5 days.  Although their actions were in line with their policy, and with the legal guidelines in place, the Employment Appeal Tribunal decided that, in this particular case, the dismissal was unfair. 

I see this all the time, where managers and/or HR Adviser’s focus on the letter of the law or what is written in their policy rather than on the ‘fairness’ to the individual person involved.  It seems that they think that by having a ‘good’ (by which I mean overly complex and way too comprehensive) policy in place, you can disengage the brain and simply go through the motions of dismissing someone.

When managers (and HR Managers) are challenged on the witness stand in a tribunal as to why they did or did not do or consider something, they just look blank.  Or worse, say that they were simply following their procedure.  Understandably, tribunals have little tolerance for them.

In any employment situation it is important to always remember that you are dealing with people. That everyone is different, has different needs and that what may be a ‘fair’ procedure for one person may be ‘unfair’ for another.  Time to engage brain and get away from that ‘tick box’ mentality. 

Policies and procedures should be viewed as guidelines only.  It is much better to have a simple short policy and procedure (3 pages max) that everyone can read and understand.  Then provide managers with more detailed guidance and training as to how to roll out the disciplinary procedure in individual cases and in different scenarios.  This needn’t cost a fortune but can certainly save you one.

2.       Lack of Evidence
The second main reason why companies lose unfair dismissal claims in misconduct cases is due to lack of evidence.  This is usually due to one of 3 reasons, or a combination of them all:

Reason one is simple incompetence – the person investigating the allegations of misconduct has no idea what they are doing; they either barely investigate at all or confuse matters by doing a huge investigation, most of which is irrelevant.

Reason two is impatience – usually a senior manager wants to ‘cut to the chase’ and get on with the dismissal process before the investigation has been completed.

Reason three – often linked to reason two above – is that misconduct is not the real reason you want to get rid of the person.

Reason three is the most dangerous and risky financially.  It may well lead to a finding of unlawful discrimination.  A tribunal may decide that perhaps you have focused on someone because she is pregnant, is an older worker, or has a disability.  The only way to protect your business from a tribunal drawing this kind of inference, and awarding compensation accordingly, is to ensure that the evidence you have stacks up.

When it comes to losing a tribunal claim for reasons one and two there is really no excuse.  Admittedly conducting a good investigation is tricky and takes considerable skill.  Knowing what to ask and what not to ask, what to say/reveal and what not to etc.  But it is a skill that people can learn in-house or that can be bought in from outside the organization as and when required.  There are advantages to bringing in a suitably skilled external person as it kills both reason one and two with one stone.  This is because an external investigator is usually able to contain the impatience of managers and can deal with matters more swiftly than an in-house investigator as they do not have a ‘day job’ to deal with as well.

The important thing, though, is that a thorough (and quick) investigation is the key to deciding whether or not a dismissal is likely to be fair or unfair.  Your investigator needs to establish as quickly as possible not whether the employee is guilty or not, but whether there is sufficient evidence to dismiss him/her.

Most investigations can be completed in three days – not necessarily three consecutive days – but not the weeks and even months I have seen some investigations take.  The investigation should begin with a review of the case against the employee (paperwork, CCTV footage, recordings, complaint letters etc).  This is then followed by an investigative meeting with the employee concerned.  This is followed up with meetings with any potential witnesses, and a review of further relevant documentation etc. 

In some cases there may need to be a second meeting with the ‘accused’.  A well-trained investigator can use this meeting to the business’s advantage by having either :
·         ‘open’ discussions with him or her; or 
·         ‘without prejudice’ discussions with him or her

These discussions may lead to a resolution of the situation without the need for a disciplinary hearing - and if you can avoid a dismissal you can avoid an unfair dismissal claim.

So my advice is that, if you do not want to find yourself facing an unfair dismissal and/or discrimination claim in an employment tribunal any time soon, you need to either:
·         Not use your disciplinary procedure to dismiss people; or 
·         Make sure that your disciplinary procedure is ‘fit for purpose’ i.e. that your managers/HR team are given guidance and training on how to use that procedure flexibly and fairly, and that you use trained investigators either from within the company or someone external.

I have never yet, in over 25 years of employment tribunal advocacy, seen an unfair gross misconduct dismissal that could not have been avoided with a little more understanding, patience and common sense.  Yes, it can be frustrating. Yes we probably know what the outcome will be before we get to the disciplinary hearing.  But with a little more time, training and a more adaptable approach that dreaded verdict of "unfair dismissal" can be avoided.

The guidance and training required for mangers who may be required to conduct disciplinary hearings can usually be provided in a single day.  Training and guidance for those all important investigators takes a bit longer but is well-worth the investment.  Alternatively I can provide you with a suitably skilled and highly trained investigator as and when required.

You may also be interested in “HR Evolved”, which is a unique training programme for HR Managers.   It enables them to comply with employment legislation and best practice, but also provides them with the skills and insights to take HR to a whole new level that works for, and with, the business as a whole, its ethos and principles.  'Evolved' HR professionals will be able to get real results and resolutions with the minimum expenditure of management time and effort, costs, legal fees and sleepless nights (for all concerned).  If you would like further information - or a free chat about this or any other employment related issue - please contact me by email or by 'phone on 07595 369485.
  • Dispute Resolution
  • Disciplinary investigations
  • Employment disputes
  • Disciplinaries
  • Employment Tribunals

I am an employment solicitor with 25 years' experience defending employment tribunal claims, dealing with unfair dismissal and discrimination claims including sex discrimination, race discrimination,…

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