Disciplinary procedures and dismissal

Disciplinary procedures and dismissal

Employees can have considerable legal protection

Contents
against dismissal. Those who have been
3 A practice disciplinary procedure 8 Disciplinary appeals
employed for at least two years have protection
against dismissal for an unfair reason or in an 3 Evidence that you have behaved fairly 9 Who should conduct the appeal hearing?
unfair way. Protection against dismissal is even 3 The opportunity to respond 9 Dealing with delays
greater, regardless of the employee’s length of 3 Informal meetings 9 The appeal meeting
service, in cases of pregnancy, discrimination, and 9 After the appeal hearing
attempting to assert a right laid down in statute or
3 Clear disciplinary rules
for health and safety reasons.
10 Unfair dismissal
An employee who believes that they have 4 Disciplinary investigations 10 Fair and unfair reasons for dismissal
been unfairly dismissed can seek redress by 4 Investigatory meeting with the employee 10 Reasonable dismissal
complaining to an employment tribunal. If the 4 Suspending employees during an 10 Discrimination
complaint is substantiated, the tribunal can
investigation 10 Inadmissible reasons for dismissal
order reinstatement or re-engagement but, more
often, it awards compensation for the dismissed 11 Dismissal for asserting a statutory right
employee. 5 The disciplinary hearing 11 Notice and wrongful dismissal
5 Resignation is not an option 11 Criminal offences
Nevertheless, a business should deal with 5 Inviting staff to a disciplinary hearing 11 Constructive dismissal
misconduct by employees and the law allows
5 The right to be accompanied
for this as long as employers do so in a fair
and reasonable way, invariably by following a 6 Postponing the hearing 11 Pre-termination negotiations
disciplinary procedure. 6 The format of the hearing
6 Deciding the outcome 12 Relevant BDA advice

7 Warnings and dismissal 12 BDA models (avilable from BDA Expert)

7 The number of warnings
7 The first two years of employment
7 After two years of employment
7 Warning letters
8 When to dismiss
8 Written reasons for dismissal
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 Disciplinary procedures and dismissal

A practice disciplinary procedure The opportunity to respond Clear disciplinary rules

A formal procedure gives employees the opportunity to
Employers must follow a basic disciplinary process respond to allegations, offer their views and, depending Written disciplinary procedures describe what happens
if they want to take disciplinary action against an upon the seriousness of the issue, put things right. if someone does something wrong. They also set out
employee or dismiss them. Failing to do so may allow People expect to be given the opportunity to respond the circumstances that can lead to dismissal.
an employee to claim in an employment tribunal that to allegations before action is taken against them.
they were unfairly dismissed; fairness is judged on Employees should understand the standard of work and
the procedure as well as the reason for dismissal. A A disciplinary process allows staff to feel that they are working procedures that are required routinely and be made
formal written disciplinary procedure should be either being treated fairly; you will gain more respect from all aware of the likely consequences of breaking rules and the
included in or referred to in the employment contracts staff if you follow a proper procedure. The disciplinary type of conduct that may warrant summary dismissal. New
of staff. process may reveal new facts or issues which alter your employees should have the practice disciplinary procedures
view about the perceived misconduct. explained as part of their induction programme.
Disciplinary procedures are judged on the basis of
general reasonableness. The code of practice produced Informal meetings The primary purpose of a disciplinary procedure should
by the Advisory Conciliation and Arbitration Service Depending on the matter that needs to be addressed, be to help staff work better or behave better; it should
(ACAS), Discipline and grievances at work, provides you may feel that an informal discussion is more not be a punishment for misconduct.
good practice advice that should be followed. The appropriate than the more formal disciplinary
BDA’s policy is based on the ACAS code. procedure. You need to explain your concerns clearly Your procedure should comply with a number of principles:
and the changes you expect and also that you may take
The system in Northern Ireland is different: statutory formal disciplinary action if there is no improvement. • Staff should know what they can and cannot do.
minimum procedures with certain minimum steps must Use your contract of employment, job descriptions,
be followed. Verbal reprimands may be sufficient to ensure a positive practice rules and procedures, posters in the staff room
response from an employee but they will not form part and team meetings to make sure staff know what is
Evidence that you have behaved fairly of the disciplinary process and will not count if you later expected of them. You cannot, for example, discipline
The letters written as part of a formal procedure need to take a more formal disciplinary route. someone for using their mobile phone at the practice
(invitations to disciplinary meetings and formal if you haven’t told them that it is not allowed.
warnings) provide evidence that you have behaved In employment law, a warning is a formal form of • Staff should know what to expect if they do
fairly. If a former employee claims that they were punishment that is sometimes given to an employee something wrong. Generally an employee should
unfairly dismissed or that you have discriminated following the disciplinary procedure; a verbal reprimand receive a formal written warning. Whereas, for gross
against them, you need to prove that you behaved does not carry the same weight. Avoid saying that misconduct, they may be dismissed.
fairly. Disciplinary letters should describe what you did, an employee is being warned when, in fact, they are • Investigate allegations before taking disciplinary
when you did it and why you did it. Objective reasons receiving a reprimand as it causes confusion. action.
for disciplining an employee provide a good defence to • Staff should have an opportunity to answer the
any allegation. If the matter is a repeated or serious problem, you allegations. This means you have to hold a disciplinary
should follow a formal procedure. meeting before you take any disciplinary action against
staff, whether it is issuing a warning or dismissal.
• Staff should have an opportunity to improve.

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 Disciplinary procedures and dismissal

Disciplinary investigations Take detailed notes for each person interviewed and, if Suspending employees during an investigation
they are willing, get them to write their own statement Where an allegation is serious and there is a significant
If you suspect someone has done something wrong, about the incident. As soon as possible after the risk to the practice if the employee remains, it may be
you need to have the relevant information before you interview, give the interviewee a copy of your notes necessary to suspend them during an investigation.
take disciplinary action. Find out as much detail as of the meeting, which they should read through and Suspension may be necessary when investigating, for
possible; you may find that the situation is not as you agree. If they are willing, ask them to sign your copy but example, allegations of theft or violence or serious
first thought. explain that the accused member of staff will see these breach of health and safety rules. You have to suspend
statements. on full pay; the employee should not be disadvantaged
When gathering the facts, speak to all those involved because you have suspended them.
with or who witnessed the incident (including patients). Verify statements by double-checking with other
Creating a timeline of events may help you to visualise records or outside bodies, wherever possible. Confirm the suspension in writing, emphasising that
the incident a little better and allow you to compare the Documentary evidence, if available, may also be helpful. the measure is temporary pending further investigation
accounts of those you have spoken to (and identify any You will need to identify the sources of information that and that they will continue to receive full pay in the
discrepancies). may help to shed light on what happened. meantime. Explain that

Asking the same questions of each person can help Investigatory meeting with the employee • You are suspending them
you to maintain your objectivity and gain a full picture An investigatory meeting with the employee concerned • Suspension is a neutral act and does not imply that
of what happened. Open-ended questions allow the will allow them to provide an explanation for what any decision has been made
respondent to provide full responses and help avoid happened or some other information that will help • They will continue to receive full pay
suggestions of bias. Depending on the incident, you will you decide whether a disciplinary hearing is required. • You are investigating the issue and will let them
need to find out You must inform the employee beforehand that the know the outcome as soon as possible
investigatory meeting is a formal meeting and that – • If you find that you think they have done something
• What actually took place? depending on the outcome – the matter might proceed wrong, you will invite them to a meeting to discuss
• Who was involved and who witnessed the incident? to a disciplinary hearing. Being accompanied at this this.
• Where it happened? stage is not a legal requirement but the employee
• When it took place? should be given the opportunity.
• Why it happened?
• How it happened? At the investigatory meeting you should discuss the
allegations, confirm times and dates and who else
was present, and ask the employee for their version of
events. Make sure that the employee understands what
why the meeting is being held and that it is not part of
the formal disciplinary process.

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 Disciplinary procedures and dismissal

The disciplinary hearing The invitation to a disciplinary hearing must contain the Employees may, instead, want a friend or relative to
following information: attend the meeting as their companion. There is no
The most important part of the disciplinary process is legal right for the employee to be accompanied by
giving the employee time to respond to the allegations • The time, date and place of the hearing a companion but you should consider the request
you are making. The employee must know when • The purpose of the hearing – which is to consider carefully. Permitting the attendance of a friend or
you will discuss their alleged misconduct or poor whether the employee’s actions or omissions relative as a companion will help to demonstrate
performance, the issues that you want to discuss and amount to misconduct and whether any disciplinary that the disciplinary process is open and there is no
be given ample opportunity to explain their side of the sanction should be taken intention to bully or brow-beat the employee. You
• Details of the allegations and the supporting
story. should exercise your discretion and consider only
evidence, including any statements that you have
taken during your investigation. You cannot decide excluding a companion who would compromise the
Resignation is not an option until after the hearing whether the employee is meeting – by being disruptive, for example.
Offering an employee the option of resigning rather guilty of the allegations and whether their actions
than go through the disciplinary process would be amount to misconduct, so you must stress that The companion is not the employee’s representative
regarded as an unfair dismissal; you must follow the these are merely allegations and not, as yet, facts but is there to provide the employee with advice and
proper disciplinary process. An employee, however, • The right to be accompanied by a work colleague or support during the hearing. Unless agreed with the
has the right to resign rather than attend a disciplinary trade union representative employer, a companion cannot answer questions on
meeting. • The possible outcomes – a formal warning or the worker’s behalf; the purpose of the questions is to
dismissal. Dismissal should only be considered find out the employee’s response. The representative
If an employee asks whether they can or should resign, if the alleged misconduct is very serious or if the has the right to address the disciplinary hearing and can
employee has previously received a final warning
you must not influence their decision in any way and put the employee’s case forward, provide a summary of
• Who will conduct the hearing and, where relevant,
can only say that the choice is theirs. If they choose who will be present to take notes. the case and respond on the employee’s behalf to views
to resign, they must put their resignation in writing. expressed at the meeting.
You should reaffirm that you will be following the The invitation letter should ask the employee to confirm
disciplinary process and make a note that they asked their attendance and state that, if the employee does not The companion’s involvement should be clearly set out
the question and how you responded, adding this to attend without a good reason, you may conduct the hearing at the outset of any disciplinary hearing, to help prevent
the notes of the disciplinary hearing. in their absence, which could lead to you making a decision them from hampering proceedings by behaving in an
without the formal opportunity to hear their side of the story. unacceptable manner.
If an employee has done something wrong, you
have only one proper course of action – to follow the The right to be accompanied An employee may ask if they can bring a lawyer. Whilst
disciplinary process. The employee is entitled to be accompanied by a not set out in law as an absolute right, where dismissal
representative who is a full time trade union official, for gross misconduct could result in the individual
Inviting staff to a disciplinary hearing a lay representative certified by their trade union or also losing their career, public sector workers (ie those
employed directly by the NHS) may be entitled to legal
Employees must be given sufficient notice, in writing, a work colleague, including self-employed or agency
representation at internal disciplinary hearings – if,
of a formal disciplinary hearing; people need time to workers. The employee and the representative are for example, the alleged misconduct would also lead
consider the allegations, seek advice and arrange for protected against detriment or dismissal for exercising to criminal charges or suspension by the GDC. This
a companion to attend. About one week’s notice is their legal rights. If the representative is dismissed for entitlement would not normally apply to those working
generally advised. accompanying a colleague at a disciplinary hearing, the in general dental practice but further advice should be
dismissal will be automatically unfair. sought.
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 Disciplinary procedures and dismissal

Postponing the hearing 4. Give the employee the opportunity to respond; it Deciding the outcome
Employees may ask you to postpone the disciplinary is up to them to deny the conduct or provide an Following the disciplinary hearing, you need to decide
hearing. You should agree if the reason for the request explanation. You must give them ample time to whether or not disciplinary action is justified.
is reasonable, for example if the person they want to respond, without interruption. The reasonableness
accompany them is unavailable. Employees should not of the employee’s response will determine the An employee may deny an allegation and, following
delay a disciplinary hearing by more than five working outcome of the meeting. You may ask questions, the disciplinary hearing, you must decide whether the
days, however. if you do not understand a point raised or need to allegation is valid or not. You do not have to prove that
clarify a fact; grey areas should be discussed. When the employee is guilty of the misconduct; employment
If the employee is ill, you should rearrange the hearing you leave the meeting, you must be clear about law requires only that you believe it to be more likely
for a time when they will have recovered. Long-term what happened and the employee’s response and than not that they are and that you have conducted a
illness may lead to a disciplinary hearing being delayed interpretation of the incidents. Avoid arguing; each proper investigation and held a fair disciplinary hearing.
for some time. If the allegations are serious or if an party should present their understanding of events.
employee repeatedly avoids a disciplinary hearing 5. Depending on the issue, it may be appropriate A future claim of unfair dismissal will require you to
through frequent short-term absence, it may be to discuss and agree achievable targets for justify that your decision was reached sensibly. You
reasonable to fix a date and stick to it – although it may improvement. Explain that further disciplinary may have to explain why you believed the employee
entail holding the meeting in their absence. If you are action might be taken if these targets are not met to be guilty of the misconduct. If the matter goes to
faced with these types of obstructions, you must seek and make it clear whether you intend to give any a tribunal, it considers whether your decision was
legal advice on how to proceed. warnings. The details of any warnings cannot be reasonable rather than reaching its own decision.
finalised until after the meeting.
The format of the hearing 6. Once the employee has responded fully to the You must also consider what action to take if the
You or your practice manager should conduct the allegations, you should adjourn to consider your employee is guilty of misconduct – a formal warning or
meeting and have someone present to take notes. decision. There may be much to reflect upon dismissal. The sanction must be proportionate.
Start with and explanation of what will happen – the and you may feel the need to undertake further
following steps provide a guide: investigations into the incident before making a
decision. Although you do not have to provide a
1. Introduce everyone present and describe their roles. response immediately, the employee should be
2. Explain that you or your practice manager will informed of the decision without unreasonable
consider the employee’s response to the accusations delay.
and make a decision on the outcome. Stress the
importance of each party not interrupting the other.
3. Describe your concerns and your understanding of
the event(s) leading to the hearing, including dates
and times. Explain the difficulties resulting from the
employee’s alleged conduct.

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 Disciplinary procedures and dismissal

Warnings and dismissal If, during the first two years of employment, an Where conduct is serious enough to warrant more
employee does something wrong or does not perform than an initial verbal warning, you can go straight to a
After you have conducted the disciplinary hearing, to the required standard, you should hold a formal written warning or even a final written warning but you
considered the employee’s reply and decided on disciplinary hearing and give them a final written must be able to justify your decision.
the outcome, you must write a decision letter to the warning stating that you will consider dismissal if
employee outlining what action will be taken. the action is repeated or their performance does not Warnings expire after a period of time and the
improve. employee should know the timescales involved.
If you decide that the employee’s explanations are If there are further problems within the defined period, You should decide the intervals appropriate for your
reasonable, no further action is needed. If the employee you should hold another formal disciplinary hearing to circumstances but, as a guide, six-months for verbal
did not have a reasonable explanation, you should give consider dismissal. warnings, nine months for written warnings and 12
them a formal disciplinary warning. Generally, dismissal months for final written warnings are good starting
is only justified if the employee’s misconduct was very After two years of employment points.
serious or if they have already received a final warning. It is essential that a fair disciplinary process is followed
Explain your decision, the action you are taking and why. in all cases, even for cases of gross misconduct. Warning letters
The terms of warnings must be clear and specific, hence
The number of warnings The disciplinary process usually involves four formal the need to put them in writing.
Warnings provide the employee with an opportunity stages:
to improve. You should explain that, if they repeat the Your formal warning letters should include:
action that led to the warning, you would consider 1. Verbal warning (which must be confirmed in writing)
further disciplinary action that could lead to dismissal. 2. Written warning • The date of the letter
Your disciplinary procedure should state the number 3. Final written warning • The date of the disciplinary meeting
of warnings an employee is entitled to receive. This can 4. Dismissal • An explanation that it is a warning and the type of
depend upon their length of service. warning that it is (verbal warning, written warning or
All stages, including the formal verbal warning, require final warning)
The first two years of employment an investigation and disciplinary meeting before you • The nature of the misconduct
Employees are protected against unfair dismissal after can decide whether or not to issue a formal warning. • The behaviour or improvement that is expected in
two years’ employment (one year in Northern Ireland). For most conduct or performance issues, you should future
Disciplinary processes should still be followed for start with a formal verbal warning. If the conduct is • That further disciplinary action could be taken if the
employees with less than 2 years’ service because there repeated, you can issue a written warning and then a employee does not comply with the terms of the
is no qualifying period for protection against dismissal final written warning. If there is no improvement, you warning
on grounds of discrimination. can consider dismissal. • Information on the employee’s right to appeal
against the warning.

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 Disciplinary procedures and dismissal

When to dismiss Written reasons for dismissal Disciplinary appeals

After you have conducted the disciplinary hearing and The dismissal and reason for dismissal should be
considered the employee’s reply, you can dismiss fairly confirmed in writing. There is a legal obligation to do An employee can ask an employer to reconsider a
where: this where the employee has two or more years’ service decision to formally warn or dismiss them. The desired
(one year’s service in Northern Ireland), is pregnant result of the disciplinary process should be for the
• An employee has breached the terms of a final or is on maternity leave. If an employee requests employee to recognise their misconduct and not
written warning, or confirmation of their dismissal, this should be complied repeat it. If the employee feels that their conduct was
• The employee’s conduct is so bad (gross with within 14 days. Otherwise, the employee can not unsatisfactory or that there were extenuating
misconduct) that you cannot reasonably be complain to an employment tribunal. circumstances, they should be allowed to raise these
expected to allow them to remain at the practice. concerns through an appeals process. An appeals
Your dismissal letter should include: process allows an employer to demonstrate that they
However, if you have tolerated the employee’s gross are dealing with the issue meticulously and fairly.
misconduct without any action, it may be difficult to • The date of the letter
justify dismissal on these grounds. Also, if you haven’t • The date of the disciplinary meeting Information about the right to appeal should be
suspended the employee during the disciplinary • An explanation that the employee is being provided in writing as part of the formal disciplinary
process, summary dismissal (without warnings) may dismissed decision. The employee must be given a deadline for
also be difficult. A tribunal would consider that, if you • The reason for dismissal, including the nature of notifying you of their intention to appeal – five working
have tolerated the employee remaining at the practice their misconduct and why you feel this amounts to days is sufficient (and is recommended in the ACAS
during the disciplinary process, their conduct cannot be gross misconduct, or details of previous warnings, code).
so intolerable that you have to summarily dismiss. including their final warning, and
• Information on the employee’s right to appeal The employee should state the reason for their appeal –
Conduct that amounts to gross misconduct can lead to against the warning. new information may have come to light or the proper
dismissal without going through the various warnings. procedure may not have been followed in the original
Your disciplinary procedure should, therefore, define hearing. The appeal should not be a repeat of the
gross misconduct. Examples include violent behaviour, original disciplinary meeting, however.
theft and breach of confidentiality.
Once an employee appeals against a disciplinary
You can dismiss without notice only when an employee decision, the employer must acknowledge their
has committed an act of gross misconduct. When an appeal in writing and schedule the appeal hearing
employee has breached the terms of a final written without delay. As with disciplinary hearings, employees
warning, you should dismiss with notice or pay the have the right to be accompanied by a trade union
employee in lieu of notice. representative or work colleague at the appeal meeting.

You should always seek independent legal advice Have available for the appeal hearing all relevant
before dismissing an employee. information and documents, including any evidence
acquired since the first hearing and statements from
any new witnesses.

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 Disciplinary procedures and dismissal

Who should conduct the appeal hearing? Where it is difficult to arrange a date for the appeal After the appeal hearing
Ideally, the person who conducted the disciplinary hearing, the employee should be informed of the delay The appeal may result in a confirmation of the
investigation and initial disciplinary meeting should not as soon as possible. Failing to do so, may increase disciplinary warning or dismissal. This must not be used
hear an appeal against the decision. compensation awarded to the employee by a tribunal. as an opportunity to punish the employee further or
result in an increase in the penalty.
Appeals procedures can cause difficulties, especially The appeal meeting
for single-handed practices. A practice manager could If you have to manage an appeal hearing, the following The appeal might also result in the original warning
conduct the disciplinary interview and issue warnings, format can help you organise the meeting process: or dismissal notice decision being withdrawn or the
allowing the practice owner to hear the appeal (or disciplinary penalty reduced (a dismissal becomes a
vice versa). Alternatively, another local dentist or 1. Introduce those present and ensuring that everyone final warning, for example). Whatever the outcome, the
independent person (the practice accountant or knows the background to and the purpose of the decision must be objective and justified. If the decision
solicitor, for example) may be willing to help. This meeting; the aim is to resolve the dispute, so keep is overturned, consider whether there are training
option may involve a charge to the practice and an open mind and listen carefully to what is said. implications for those involved with the disciplinary
requires a mechanism for preserving the confidentiality 2. Describe the alleged misconduct and the original process or whether the process needs to be reviewed or
of information about patients and the practice business. decision. Ask the employee why they are appealing; clarified.
allow them to state their case and respond to any
Where dentists work in partnership, one partner might allegations. Ensure that all the facts relating to the Inform the employee of the results of the appeal and
undertake the disciplinary action and another partner appeal are reported and take note of any special the reasons for the decision and confirm it in writing.
the appeal, providing they have not been involved in or circumstances. If new evidence has been introduced, Make it clear that this decision is final. The appeal letter
consulted about the disciplinary enquiry and hearing. ensure the employee has the opportunity to should include:
Associates can also be asked to participate in the comment on it. If a significant new fact emerges,
process. it may be best to adjourn the meeting while it is • The date of the letter
considered and investigated. • The date of the appeal meeting
Dealing with delays 3. Conclude the meeting by summarising what has • Details of the original disciplinary decision and the
If the employee is genuinely unable to attend the happened and explaining when you will give your date of the original disciplinary meeting
appeal hearing, for example, if they are ill, you must decision. Leave yourself time after the meeting to • Whether the original disciplinary decision is upheld
offer them an alternative, reasonable date and time. consider what has been said and to follow up on any or revoked
new information. • An explanation that this decision in final.
If the employee’s companion cannot make the appeal
hearing, the employee must propose another date and
time that is no more than five working days after the
day originally proposed.

If the employee fails to attend the rearranged hearing,

this stage of the procedure is complete and the
employer can make their decision and inform the
employee in writing.

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 Disciplinary procedures and dismissal

10

Unfair dismissal Fair and unfair reasons for dismissal Discrimination

The law sets out five potentially fair reasons for dismissal The Equality Act 2010 lists nine protected
If, following a dismissal, a dispute arises, the employer – for example, persistent bad time-keeping, rudeness, characteristics: age, disability, gender reassignment,
must demonstrate that the dismissal was fair. Although clumsiness, carelessness or ill-health. A dismissal is marriage and civil partnership, pregnancy and
most staff in a dental practice have the legal right to potentially fair if it is for one of the following reasons: maternity, race, religion or belief, sex and sexual
bring a claim of unfair dismissal to an employment orientation. Dismissals associated with these protected
tribunal, certain groups are likely to be unable to claim: • Capability – assessed by reference to skill, aptitude, characteristics are automatically unfair.
health or any other physical or mental deficiency, or
• Anyone who is not an employee - a self-employed qualification for the job for which the individual was Employers must protect themselves against a
technician or associate dentist, for example, employed discrimination claim and ensure that they can justify
(although care must be taken to avoid the self- • Conduct the reasons for a dismissal, demonstrating that it was
employed individual claiming employee status) • Redundancy (see BDA advice Redundancy) not associated with any of the protected characteristics.
• In England, Scotland and Wales, employees with less • A statutory restriction, where continued Following a fair disciplinary and dismissal procedure in
than two years’ continuous service up to the date employment would contravene the law all circumstances is therefore essential.
when the dismissal takes effect (that is, after expiry • Some other substantial reason that would justify
of the notice period). If you are concerned about dismissal – for example, the need to change an Dismissal of a pregnant employee must be for a
a new employee’s conduct or ability, dismiss well employee’s terms of employment due to financial substantial reason that is not associated with the
before the two year barrier. problems or altering the practice’s opening hours. pregnancy; otherwise it may lead to a sex discrimination
• In Northern Ireland employees with less than one claim as well as unfair dismissal. Further advice is
year’s continuous service up to the date when the Always ensure that the reason for a dismissal falls clearly available in BDA advice Employees’ maternity and
dismissal takes effect (that is, after expiry of the within one of the five categories outlined above. parental rights and Equality and diversity in the
notice period). If you are concerned about a new workplace.
employee’s conduct or ability, dismiss well before Reasonable dismissal
the one year barrier. Employment tribunals look at the substance of a claim Inadmissible reasons for dismissal
for unfair dismissal. It would not, for example, be Inadmissible reasons for dismissal include pregnancy,
reasonable to dismiss a member of staff who has been gender reassignment, trade union membership or
employed for 10 years with an impeccable record if, one non-membership and activity on behalf of a trade
day, they are five minutes late. union. Employees, who make a protected disclosure (ie
whistleblowing) and are dismissed as a result, can also
Similarly, a finding of gross misconduct does not make a complaint to a tribunal. Employees do not need
necessarily mean that dismissal should follow. A to have worked a minimum length of service to claim
tribunal will still decide whether dismissal was unfair dismissal for these reasons.
reasonable in the circumstances or whether there are
any mitigating factors.

The tribunal will also look at the procedure that was

followed and (if appropriate) whether clear warnings
were given.
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 Disciplinary procedures and dismissal

11

Dismissal for asserting a statutory right Notice and wrongful dismissal Constructive dismissal
All employees, irrespective of their length of service An employee’s agreed terms of service should include Occasionally an employee will resign and claim to
or age, are entitled to complain to an employment the right to receive notice of termination of employment. have been constructively dismissed – for example, if an
tribunal if they are dismissed or selected for redundancy The minimum notice period is laid down by legislation: employer unilaterally reduces pay or working hours or
because they have sought to assert one of their does anything else to demonstrate that the employer
statutory employment rights by bringing proceedings • At least one week after one month’s service no longer feels bound by the employee’s contract
against the employer to enforce it, or alleging that the • At least two weeks after two years’ service of employment. Any actions designed to make an
employer has infringed it. • Thereafter an additional week’s notice for each employee feel unwelcome or intimidated might lead to
additional year of service up to a maximum of 12 a complaint of constructive dismissal.
The main statutory rights to which the provisions apply are: weeks’ notice.
Employees must generally be given the full agreed Pre-termination negotiations
• To receive a written statement of employment period of notice or pay in lieu unless their misconduct is
particulars serious enough to justify summary dismissal. If neither In certain circumstances, employers can approach their
• To receive an itemised pay statement notice nor pay is given, the employee can make a claim employees on a confidential basis with a view to ending
• To receive the national minimum wage of wrongful dismissal, regardless of their length of their employment using a settlement agreement – a
• To have reasonable time off for domestic service or hours of work. A claim for any holiday pay legally binding contract in which an employee waives
emergencies owing at the time of dismissal can also be included. So, (or forfeits) their right to bring a claim against their
• To exercise the right to parental leave whenever an employee is dismissed, the contractual employer; in return, the employee usually receives a
• Guaranteed pay if laid off period of notice must be given (or pay in lieu), plus any payment and agreed reference.
• Time off for public duties unused holiday entitlement that may be due.
• Time off to look for work or make arrangements for These pre-termination negotiations are protected
training prior to redundancy If notice is given with effect from a certain date, and legally – if the employee does not sign the settlement
• Time off for antenatal care the employee then resigns with effect from an earlier agreement and later brings an unfair dismissal claim,
• Protection against unlawful deduction from pay date (assuming the agreed terms of service allow this), the fact that the employer conducted a pre-termination
• A minimum period of notice the employee is still regarded as dismissed and may negotiation cannot be referred to in the proceedings.
• Not to be discriminated against on the grounds of complain of unfair dismissal. Any evidence of these pre-termination negotiations
race, sex, age or disability. will be excluded and cannot be used in an attempt to
Criminal offences prejudice the employer’s case.
The right to complain applies regardless of whether With regard to criminal offences outside employment,
the employee qualified for the right in question and the ACAS code of practice Disciplinary and grievance This should empower employers to enter into early
regardless of whether it has in fact been infringed, procedures advises that ‘an employee should not be settlement discussions with an employee without
provided that the employee acted in good faith. dismissed or otherwise disciplined merely because he fear of the discussions being used against them in
or she has been charged with or convicted of a criminal later employment tribunal proceedings. Prior to 2013,
If you want to dismiss an employee who is asserting a offence. The question to be asked in such cases is settlement discussions could only be excluded from the
statutory employment right, take advice first from the whether the employee’s conduct merits action because proceedings if a tribunal claim had already been started.
BDA or a solicitor. of its employment implications’.

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 Disciplinary procedures and dismissal

12

Limits Discussing a settlement Relevant BDA advice

There are, however, important limits to the protection The ACAS code of practice on Settlement agreements
of pre-termination negotiations. The protection only provides useful guidance on conducting pre- Employees’ maternity and parental rights
applies to ordinary unfair dismissal claims and does not termination negotiations and suggests that parties Employing staff
extend to cases involving discrimination, maternity, should be given a reasonable period of time to consider Equality and diversity in the workplace
whistleblowing, breach of contracts claims or where a proposed settlement agreement. As a general rule, Grievance procedures
an employee is asserting a statutory right. In these a minimum of ten calendar days should be given to Sickness absence
situations, evidence of any pre-termination negotiations consider the written terms of the settlement agreement
will be admissible in any future claim. This means there and to receive independent legal advice. Interactive disciplinary process programme
will continue to be risks involved in any attempt to
enter such discussions in a situation where these other The ACAS code states that the parties may find it helpful
types of claim may arise. to discuss proposals face-to-face and any such meeting Model policies and protocols available
should be at an agreed time and place. This provides the in BDA Expert
Also, pre-termination negotiations may be admissible other party with the opportunity to make a counter-offer
where the employment tribunal deems something said should they wish. Although not a legal requirement, it is Disciplinary procedure
or done was improper or connected with improper good practice for employers to allow employees to be Disciplinary procedure letters:
behaviour. What amounts to improper behaviour will accompanied at the meeting by a work colleague, or a • Disciplinary warning letters
be for the tribunal or court to decide but it could be trade union official or representative. • Dismissal letter following previous warnings
failing to give an employee reasonable time to consider • Notice of appeal hearing
any settlement proposal or telling the employee that Settlement agreements • Notice of a disciplinary hearing
they will be dismissed if they reject the proposal. Acas In employment, a settlement agreement is a legally • Summary dismissal letter
guidance states that improper behaviour may be binding contract whereby an individual waives their Notice of result of appeal hearing
deemed to have occurred if the employer’s conduct right (usually in return for a termination payment by
or statements put undue pressure on the employee the employer ) to make a claim against an employer
because of: assault and other criminal behaviour; to a court or employment tribunal. To be valid, the
blackmail; discrimination; fraud; harassment, bullying settlement agreement must be in writing and relate
and intimidation; perjury; or victimisation. to a particular complaint or proceedings – it must
specifically state the claims that it is intended to cover.

The employee must have received independent legal

advice on the terms and effect of the agreement,
particularly its effect on their ability to pursue the
relevant claims. The adviser must carry appropriate
insurance and be identified in the agreement. The
agreement must state that the applicable statutory
conditions regulating settlement agreements have
been met.

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