Downloaded 19 times
Uploaded byShorebird RPO
Unfair Dismissal - Misconduct (2 of 4) Webinar Slides
The document outlines key aspects of employment misconduct and the criteria for fair dismissal under the Employment Rights Act 1996, emphasizing that misconduct must be handled in accordance with procedural fairness and reasonable employer standards. It discusses types of misconduct, including gross misconduct and its implications, as well as fair dismissal procedures, investigation principles, and considerations of mitigating factors. Additionally, the document highlights the importance of consistency in disciplinary actions and the procedure for employees to claim unfair dismissal.
Law◦
More Related Content
Similar to Unfair Dismissal - Misconduct (2 of 4) Webinar Slides
Unfair Dismissal - Misconduct (2 of 4) Webinar Slides
- 1. Misconduct (2 of4) By: Helen Gardiner On: 21st January @ 13:00 FREE WEBINAR Starting Soon
- 4. Please note thatthe contents of this webinar do not constitute legal advice. MISCONDUCT by Helen Gardiner [email protected]
- 5. Employment Rights Act1996 (“ERA”) Dismissal unfair unless: • the employer can show that the reason (or the principal reason) for the dismissal was a potentially fair reason. Misconduct is a potentially fair reason for dismissal; and • the tribunal finds that, in all the circumstances (including the employer’s size and administrative resources) the employer acted reasonably in treating that reason as a sufficient reason for dismissal. That means that the dismissal must be both procedurally and substantively fair. Misconduct
- 6. Acas Code ofPractice on Disciplinary and Grievance Procedures Misconduct Applies to dismissals for misconduct. Must be taken into account by tribunals. ESSENTIAL READING! Download at: http://www.acas.org.uk/media/pdf/k/b/Acas_Code_of_Practice_1_ on_disciplinary_and_grievance_procedures-accessible-version- Jul-2012.pdf
- 7. What is misconduct? • Factsensitive. • Look at employer’s disciplinary rules. • Non-exhaustive list of examples. Misconduct
- 8. Gross misconduct Most serioustypes of misconduct. Warrants instant dismissal. Deliberate wrongdoing OR Gross negligence. Look at the context. Misconduct
- 9. Particular types ofmisconduct Misconduct Refusal to obey instructions. Swearing. Fighting Misuse of computers. Dishonesty.
- 10. Conduct outside work Doesit affect the employee when he is doing his work? No rule for dismissal because of criminal charge/conviction. ACAS guidance on disciplining an employee who is subject to a criminal investigation, charge or prosecution. Misconduct
- 11. Social Media • Staffusing social media outside of work hours. • Do not take a disproportionate view of the damage or potential damage to reputation. • Consider employee guidance on corporate image and reputation, and expectations regarding use of social media. Misconduct
- 12. Misconduct following previouswarnings In the absence of gross misconduct, dismissal for a first offence is likely to be unfair. • Consider only live warnings. • ACAS – staged process/ • No magic in a written warning. • Date for assessing whether a final warning is live is the date of the conduct leading to the dismissal, not the date of the dismissal. • Exercise caution if there is a final warning which is being appealed. Misconduct
- 13. The ‘fairness’ test Section98(4) ERA: The determination of the question of whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) Depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) Shall be determined in accordance with equity and the substantial merits of the case. Misconduct
- 14. Fair procedure Basic principles: •Employee should know they are at risk of dismissal and why. • They should be allowed to make representations. • They should be given a right of appeal. Acas Code: • Investigate issues. • Inform employee of issues in writing. • Conduct a disciplinary hearing or meeting with the employee. • Inform the employee of decision in writing. • Give employee right of appeal. Misconduct
- 15. Investigation • Consider howrigorous to be. • Be even-handed. • Follow up aspects of evidence. Misconduct
- 16. Misconduct by oneof a group May dismiss a group of suspected offenders where the perpetrator cannot be identified. Not an “all or none” approach. Misconduct
- 17. Employee must knowthe case against them • The employee must be sufficiently informed to be able to put their side of the story. • Consider disclosing witness statements. • Allow employee to call witnesses. • Allow employee to be accompanied. • Keep good notes! Misconduct
- 18. Substantive fairness • Was thedecision to dismiss within the range of reasonable responses that a reasonable employer in those circumstances and in that business might have adopted? • Tribunal must not substitute its view for that of the employer. • Test applies to investigation and the decision to dismiss. Misconduct
- 19. Relevant factors • Background,e.g. previous warnings • Length of service • Has the employer admitted the offence? • Shown remorse? • Provocation/stress. Consider mitigating factors. Misconduct
- 20. Be consistent Look athow other employees have been treated in similar circumstances. Be prepared to justify any differences in treatment. Misconduct
- 21. Procedure for claiming 1.Employee must contact Acas to see if the complaint can be settled through Acas early conciliation. 2. If not settled, must issue a claim within 3 months minus one day of dismissal (though limitation extended by conciliation process). 3. At tribunal, if successful the employee may claim reinstatement, reengagement or compensation. Misconduct
- 22. Contact me: Helen Gardiner [email protected] Tel:0113 244 6691 www.st-philips.com
- 23. Shared Parental Leave By:Caroline Acton On: 27th January @ 13:00 FREE WEBINAR Book Now
- 24. Telephone: 0113 3227240 Website: www.shorebird-rpo.com Email: [email protected] LinkedIn: http://linkd.in/1acZPdh Twitter: https://twitter.com/ShorebirdRPO Slideshare:http://slidesha.re/1h0ikOW Thank you