There's been a theft in the office, or a fight in the yard, or perhaps an employee is insubordinate? When can an employee be dismissed without notice? Otherwise known as summary dismissal, consideration may be given to this drastic step when there has been a breach of contract so serious the employment simply can't continue.
But it can be risky as is demonstrated by the case of Lancaster and Duke v Wileman. Ms Wileman was a successful recruitment consultant and her employers had no issues with her work. But they summarily dismissed her because she was rude and abrasive.
She raised a grievance but the employer failed to respond. The Employment Tribunal found there was insufficient evidence to justify summary dismissal. Her award was on the one hand increased by twenty five percent because her employer had failed to use a reasonable procedure, and on the other hand reduced by twenty five percent because of her conduct.
The employer’s appeal was successful. Why? Because Ms Wileman did not have two years continuous employment under her belt. When she was summarily dismissed she was two days short. She argued that her statutory notice entitlement of seven days should be added. The EAT disagreed.
The employers were off the hook but if their poorly thought out summary dismissal had been just a few days later they would have found themselves with a hefty bill.
So what is the right way to go about summary dismissal?
The terms and conditions of employment should set out the standards of behaviour required from all employees, and what constitutes gross misconduct. This should be backed up by a fair disciplinary procedure. Because even if there are allegations of gross misconduct a fair procedure should be followed.
ACAS suggests a suspension might be considered suitable. But it should be made clear to the employee it is not in itself a disciplinary action and does not involve any prejudgment.
Gross misconduct and summary dismissal are tricky areas of employment law to navigate. It might be wise to seek legal advice.
For help or advice on this or other employment law matter, please speak to Emma-Louise Hewitt on 0808 166 8827.
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