Dismissal for Misconduct

Key points

§  When an employee first starts work with an employer, he (or she) is entitled to receive a written statement containing specified particulars of the terms and conditions of his employment. The written statement (often inaccurately described as the 'contract of employment') must include particulars of any disciplinary rules the employee will be expected to observe during the course of his employment. Alternatively, the statement must refer the employee to some other document (such as a staff handbook) that is 'conveniently accessible' to him and that explains those rules or standards of conduct (section 1(3), Employment Rights Act 1996).

§  The duty to include a note specifying disciplinary rules does not apply to rules or procedures relating to health or safety at work, although there is nothing to prevent an employer outlining such rules (ibid. section 3(2)).

§  The written statement or handbook (or whatever) must also give the name or job title of the person within the organisation to whom the employee can apply if he (or she) is dissatisfied with any disciplinary decision relating to him, and the procedure for registering his dissatisfaction. In other words, an employee who believes that he has been undeservedly reprimanded or warned for alleged misconduct should know what to do and who to see in order to have the issue aired and resolved. Furthermore, if the employer's disciplinary procedure allows for appeals to progressively higher levels of management (a facility usually only available in the larger organisation), that procedure must also be explained in writing and made known to the employee (ibid.). Note, however, that until section 36 of the Employment Act 2002 comes into force (in the second half of 2003), these requirements do not apply to organisations with fewer than 20 people on the payroll (including persons employed by any associated employer and those employed in other branches of the same business) (ibid. section 3(3)).

Code of practice

§  Practical guidance on how to draw up disciplinary rules and procedures, and how to operate them effectively, is given in Code of Practice 1 (Disciplinary and Grievance Procedures) issued by the Advisory, Conciliation and Arbitration Service (ACAS), and should be studied with care. The Code stresses that employers must make every effort to ensure that employees know and understand the standards of conduct expected of them. This, says the Code, is best achieved by giving every employee a copy of the rules and by explaining them orally. In the case of new employees, this should form part of an induction training programme.

§  A failure to follow the guidelines laid down in the Code of Practice will not of itself make a dismissal unfair. Although a departure from those guidelines is admissible in evidence in any proceedings, in the final analysis it will be for an employment tribunal to decide whether in the circumstances (including the size and administrative resources of his undertaking), an employer had acted reasonably or unreasonably in treating misconduct as a sufficient reason for dismissal

Gross misconduct

§  Paragraph 7 of the Code of Practice urges that employees be made aware of the likely consequences of breaking rules and, in particular, they should be given a clear indication of the type of conduct that may warrant summary dismissal.

§  Unless guilty of gross misconduct, an employee should not normally be dismissed for a first breach of discipline. However, the expression gross misconduct is not defined. Indeed, no such definition is possible. If, for example, a shop assistant is occasionally rude or short-tempered with customers, he (or she) can expect to be taken aside by his employer and warned, in no uncertain terms, that, unless his conduct improves, he will be dismissed. A great deal will depend on the circumstances. Just how long an employer can be expected to tolerate such conduct will depend on the circumstances and the likely damage to his business. In an extreme case, a restaurateur might be well within his rights to dismiss a waitress on the very first occasion that she is rude to a customer, without affording her yet another opportunity to further damage his reputation (see Houston v Zeal (CH) Limited [1972] ITR 331). In such cases, it is not the role of the tribunal to decide whether or not an employee was guilty of misconduct at the time of his (or her) dismissal, but whether the employer had acted reasonably in the circumstances, having regard to equity and the substantial merits of the case (see Trust Houses Forte Leisure Ltd v J Aquilar [1976] IRLR 251).

§  For the avoidance of doubt, an employer should always take the time and trouble to explain to his (or her) employees that certain forms of misconduct will not be tolerated. Conduct that could cause serious damage to an employer's reputation, or that exposes members of the public to risk to their health and safety (eg the night porter in a hotel, drunk or asleep at his post), will almost invariably justify summary dismissal. On the other hand, no employee should be dismissed until all the circumstances have been thoroughly investigated and the employee has been provided with an opportunity to explain his (or her) side of the story. In Cooperative Wholesale Society Limited v Squirrell [1974] IRLR 45, it was held that an uncharacteristic act of gross misconduct, by a long-serving employee with a previously unblemished record, should not render such an employee liable to dismissal.

Dishonesty and theft

§  'If a man is dismissed for stealing, as long as the employer honestly believes it on reasonable grounds, that is enough to justify dismissal. It is not necessary for the employer to prove that he was in fact stealing' (per the Court of Appeal in Taylor v Alidair Limited [1978] IRLR 82). Again, it is not the role of an employment tribunal to establish an employee's guilt or innocence. Nor does it necessarily follow that, because an employee is later acquitted of an offence alleged to have been committed in the course of his employment, his dismissal for that offence was unfair (Harris (Ipswich) Limited v Harrison [1978] IRLR 382).

§  However, a charge of theft, proffered by the police against an employee does not, of itself, constitute grounds for dismissal. On a complaint of unfair dismissal, the employer must show that he (or she) had reasonable grounds for believing that the employee had committed the offence based on his own reasonable investigation of the circumstances (Scottish Special Housing Association v Cooke [1979] IRLR 264).

Criminal offences outside employment

§  Generally speaking, an employer may not act on a misdemeanour, however serious, that took place outside normal working hours. To justify dismissal in such circumstances, the employer must convince an employment tribunal that the employee's conduct had done harm to his (or her) business or had affected the employee's ability to work effectively. Paragraph 15(c) of Code of Practice I (qv) cautions that criminal offences outside employment 'should not be treated as automatic reasons for dismissal, regardless of whether the offence has any relevance to the duties of the individual as an employee. The main considerations,' says the code, 'should be whether the offence is one that makes the individual unsuitable for his (or her) type of work or unacceptable to other employees. Employees should not be dismissed solely because a charge against them is pending or because they are absent through having been remanded in custody.'

§  Thus, in Nottinghamshire County Council v Bowly 1978 RLR 252, an employee was dismissed without warning after having been convicted of gross indecency with another man in a public lavatory. The Employment Appeal Tribunal held that, although the employee's sexual misconduct outside normal working hours had not been particularly extreme, his employer had not acted unreasonably in deciding that his conviction no longer made him suitable to continue in his employment as a teacher.

Breach of safety rules

§  An employer, who has taken the trouble to explain to employees the importance of observing safety procedures and standards, may be justified in treating a single isolated breach of the safety rules as conduct justifying summary dismissal without further warning. Thus, in Martin v Yorkshire Imperial Metals [1978] IRLR 440, a machine operator was dismissed 'on the spot' when it was discovered that he had deliberately deactivated a dual safety control on his machine. In evidence, it was demonstrated that the employee was well aware of the likely consequences of his actions, even though his employer's disciplinary rules did not specify dismissal as the automatic penalty for a breach of the safety rules.

§  Any wilful misconduct on the part of an employee, that is likely to endanger the safety and security of fellow-employees, let alone that of clients, customers, etc would almost certainly justify that dismissal of that employee without further warning. Although there appears to be no case law on the subject, an employer could not be expected to tolerate a repetition of an incident that could have led to a major disaster or loss of life (eg, a night porter in a hotel drunk or asleep at his post).

Fighting and physical assault

§  Fighting or physical assault is invariably categorised as gross misconduct justifying the summary dismissal of one or other (or, in some cases, both) of the protagonists. However, the duty of an employer to investigate the circumstances, and to invite those concerned to explain their conduct, is well illustrated by the case of K Sherrier v Ford Motor Company [1976] IRLR 141. There, two employees were discovered fighting. One was dismissed; the other merely reprimanded. The employee who had been dismissed complained to an employment tribunal that he had been unfairly treated relative to his colleague who had not been dismissed. However, his dismissal was held to have been fair when it was revealed in evidence that he had worked for the company for just two years and had already received six prior warnings for misconduct. His companion, on the other hand, had worked for the employers for several years and had a previous good record. In a similar case, that of Meyer Dunmore International Limited v Rogers [1978] IRLR 167, the Employment Appeal Tribunal held that summary dismissal for fighting is fair if there is a clear rule, that is well understood, that fighting is a serious matter and an inquiry is properly and fairly conducted.

Misconduct and witness statements

§  Witness statements often have an important role to play in misconduct cases, especially in cases involving fighting and physical assault. While other employees (bystanders) might well be prepared to give written statements to their employer explaining what they saw or did not see, they might be less than eager (understandably, in some cases) to repeat their allegations before, or have the existence and content of those statements made known to the latter at a disciplinary hearing.

§  In Hussain v Elone plc [1999] IRLR 420, an employee dismissed for head- butting another employee appealed to the Court of Appeal against the decision of an employment tribunal that his dismissal had been fair, a decision upheld on appeal by the EAT. He argued (through counsel) that it was contrary to natural justice for his employer to have repeated those allegations at a disciplinary hearing without either acknowledging the existence of, or affording him access to, witness statements obtained from four of his working colleagues.

§  In rejecting Mr Hussain's appeal, the Court of Appeal held that, so long as an employer has carried out a fair and reasonable investigation of alleged misconduct before dismissing an employee, 'there is no universal requirement of natural justice or general principle of law that an employee must be shown in all cases copies of witness statements obtained by an employer about the employee's conduct. It is a matter of what is fair and reasonable in each case.' Mr Hussain had been informed of the allegations made against him and had been given every opportunity to respond to them. The person whom he had been accused of assaulting was also present at the hearing to give his version of events. Mr Hussain had been treated fairly and reasonably because he was told of the accusations against him and was given a full opportunity to respond to them.

§  The outcome might well have been different, said Lord Justice Mummery, if the essence of the case against Mr Hussain was contained in statements which had not been disclosed to him, and where he had not otherwise been informed at the disciplinary hearing, or orally or in other manner, of the nature of the case against him. In Louies v Coventry Hood & Seating Co Ltd [1990] IRLR 324, EAT, cited by counsel for Mr Hussain, the substance of the case against the appellant was contained in statements which the employee had asked to see and which had not been shown to him, without good reason, and on which the employer had placed substantial reliance in reaching the decision to dismiss him. That, said Lord Mummery, is not the case here.

§  In a more recent case, that of Asda Stores Ltd v Thompson & Others [2002] IRLR 245, the EAT held that an employment tribunal had been wrong to order the disclosure 'in their totality' of witness statements provided by other employees confirming allegations of gross misconduct and criminal activities by two of their colleagues – the more so as those statements had been provided under a guarantee of confidentiality. In short, said the EAT, the tribunal had failed properly to exercise its long- established discretionary power to direct disclosure of documents in an anonymised or edited form in order to conceal the identity of the witnesses and to maintain the employer's promise of confidentiality. If statements have not only to be anonymised but also edited to achieve this objective, that is what the tribunal should direct. In investigating complaints in cases such as this, where hard drugs are allegedly involved, it is entirely proper for an employer to give a promise of confidentiality – a promise that a tribunal should respect. Nothing should be disclosed, said the EAT, that in any way identifies the makers of any of the statements, unless they specifically agree to be identified. If this means that some statements have to be excluded in their entirety because it is not possible to conceal the identities of the people who made them, that is what will have to occur and the question of the fairness of the dismissal will have to be judged in due course by the employment tribunal on that basis.

Dismissal of trade union officials

§  Paragraph 26 of Code of Practice 1 (qv) points out that 'disciplinary action against a trade union official can lead to a serious dispute if it is seen as an attack on the union's functions. Although normal disciplinary standards should apply to their conduct as to other employees, no disciplinary action beyond oral warning should be taken until the circumstances of the case have been discussed with a senior trade union representative or full-time official.' Complaint to an employment tribunal

§  In the circumstances described above, an employee would not ordinarily qualify to pursue a complaint of unfair dismissal before an employment tribunal unless under normal retiring age and continuously employed for one year or more at the effective date of termination of his (or her) contract of employment. The complaint must be presented within three months of the effective date of termination of the employee's contract of employment. If his complaint is upheld, the employer will be ordered either to reinstate or re-engage the employee and/or pay an award of compensation