Dismissal for Gross Misconduct

The employment team at A&L Goodbody, discusses dismissal on the grounds of gross misconduct.

The team advises on how employers should go about following the three step process and other considerations that should be observed when dealing with a dismissal on grounds of gross misconduct.

I'm going to be looking at dismissing employees on the grounds of misconduct. Employees have the right not to be unfairly dismissed, but there are potentially fair reasons for dismissal, and one of those is on the grounds of misconduct. Article 130(b) of the Employment Rights (Northern Ireland) Order provides for this.

So whenever an employer is considering an act of misconduct, the first port of call will always be to look at the company's handbook.

• What are the standards of behaviour that are expected from employees?
• Do the allegations of this misconduct fall within an exhaustive or non-exhaustive list of misconduct?
• Are these acts which aren't suitable?

Whenever an employer is considering taking any action against an employee up to and including dismissal, they must follow a three stage process. I'll come back to that in a minute or two.

When misconduct is alleged, there's a duty for the employer to undertake reasonable investigations. That may be taking witness statements from people who saw the alleged misconduct; it may be physical evidence, or it may be documentary evidence. But it's important that a full investigation is undertaken.

Where allegations are well founded, we then move to a three step process.

Stage One

There's a statutory basis for this as well. It's the Employment (Northern Ireland) Order 2003, Dispute Regulations (Northern Ireland) 2004.

And so within the letter, there'll be a date and time for the proposed disciplinary hearing. It's also very important that within the letter it also confirms that this disciplinary process may lead to the termination of the employment. A failure to put that wording in can render the dismissal automatically unfair and an industrial tribunal claim may follow. There's also the right to be accompanied at these meetings, and therefore it's important that the letter sets out that the requirement is there.

Stage 2

Stage 2 of the process is then a meeting and it's an opportunity for the employee to be able to put forward their response to the alleged allegations. They can tender evidence. They can provide witness statements or suggest witnesses who should have evidence taken from them. They can provide reasons or refute the allegations made against them. Some of the responses that they may put forward may trigger further investigations and a need for us to go and do those investigations before taking any decision.

Following that meeting and after any further investigation, an outcome letter should be sent to the employee. And if it's confirmed that dismissal will follow, the reason for dismissal should be given. Within that letter, as well, it's also important to confirm that there is a right to an appeal.

Stage 3

Stage 3, then, is the appeal process. An appeal letter would normally come setting out the grounds for the appeal and asking for a meeting to be arranged under the terms of the handbook or the policy which is in place. Whenever that meeting is arranged the disciplinary panel have already given their decision and so it shouldn't include anyone who was involved in the disciplinary hearing before. It should be a separate panel or a separate appeal person hearing that claim.

After the appeal hearing has finished then a further outcome letter needs to be provided to the employee, either confirming that the appeal has been successful and that they're going to be brought back into the workplace, or, alternatively, confirming that the appeal has not been upheld and that they are confirmed as having been dismissed.

It's also important to remember that for employees who have more than one year of service, they have the ability to bring a claim to the industrial tribunal if they believe that they have been unfairly dismissed. At a tribunal, a tribunal will look closely at exactly what has gone on around any dismissal, and they will look at the Burchell test (the case of British Homes Stores and Burchell). They will look at whether or not, in the decision which was taken, there was a genuine belief that misconduct had taken place. They're also going to look to see if there are grounds for that belief and are those grounds appropriate. They're also then going to look to see if there was a reasonable investigation in the circumstances.

If they fall down on even one of those areas and/or the process, perhaps, was incorrect, then you can find a decision for unfair dismissal against you. In the same way, the tribunal will also look at the case of Iceland Frozen Foods and they will look to see if the decision falls within the band of reasonable responses. Does a reasonable employer look at this and will they also find a similar decision? It won't be for the tribunal simply to transpose their idea, but to look at the case and look at the dismissal which took place, to see if [the decision] was fair in all the circumstances.