January 30, 2014

Looking into unfair dismissals

Unfair dismissals happen all the time – but do you know your employees’ rights?

It is a requirement laid down by both the ACAS Code of Practice and the so called “Burchall Tests” that part of a fair disciplinary process is a fair investigation, which is reasonable in the circumstances, of the disciplinary issue.

The primary burden of proof in any unfair dismissal case is that the manager making the decision to dismiss has a reasonable belief in the facts of the disciplinary allegation. No one can have such a belief unless there is evidence to support it.

An investigation is precisely that and whilst the investigator does not have to be Sherlock Holmes he or she must approach an investigation in an open minded way, understand the nature of the allegation and obtain statements from and/or hold investigatory meetings with all witnesses and ensure that all relevant documentary evidence is collated.

In most cases it is not sufficient to merely hold an investigatory meeting with the employee being investigated.

Whilst the investigation is the first stage of a disciplinary process it should never be considered to be at an end and where issues are raised or become apparent either at a disciplinary or appeal hearing then those hearings should be adjourned to allow further investigation.

It is surprising how many cases come to grief because of investigatory failures. Set out below are three actual examples, from real cases of the problems that can be caused by poor investigations.

1. A team of employees whose work involved face to face contact with the public were carrying out their duties when one became involved in a physical altercation with a member of the public. The incident was caught on CCTV which was not clear. The investigating manager viewed the CCTV footage, formed a view from that of which team members had seen the incident and proceeded to hold investigatory meetings with those team members. The Employment Tribunal found the investigation to be insufficient and the dismissal unfair.

2. An employee was disciplined on a number of allegations the most serious of which was a failure to keep certain records. The employers business is in a highly regulated sector, subject to outside inspection by a regulatory authority with powers to close the business. The failure to keep the required records would have been a major issue for the regulatory authority. The employee failed to attend an investigatory meeting but did attend the disciplinary where she acknowledged that she had failed to keep the records but claimed that she was struggling, unsure of what to do and had raised the issue with her line manager. There was no evidence from the line manager. The employee was dismissed. The dismissal was found to be unfair in the absence of evidence from the line manager.

3. 4 employees, A,B,C and D were sent to deal with an issue at the premises of a client, they were on site from 8.30pm until 4.00am. At 7.00am the client contacted the employer complaining that the issue was unresolved another team was sent out who resolved the issue in 30minutes. Employee D was not disciplined as he was a trainee with only 2 weeks service. The other 3 were dismissed. Whilst A accepted his dismissal B and D took the matter to tribunal. They claimed that when they had left site the problem had been resolved. The tribunal found that there was a lack of evidence as to what the situation was at 4.00am. After the hearing the employer informed the advocate that A had prepared a report on site, before leaving, that indicated that whilst the problem had been abated it had not been resolved. Asked why this had not been used in the disciplinary process the response was that it was believed to relate to A.

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