It is potentially fair to dismiss you for misconduct and this might include a single act of a very serious nature (gross misconduct) or a series of less serious acts.
Your employer would ordinarily include a non-exhaustive list of examples of unacceptable behavior within a known policy and typical conduct issues may relate to disobeying reasonable management orders, unauthorised absence from work, violence at work, theft or dishonesty.
To establish that a dismissal was by reason of gross misconduct, your employer will need to demonstrate to an employment tribunal that at the time of the dismissal they believed that you had committed an act of misconduct. It might appear to you as unreasonable that all your employer has to do is ‘believe’ you had committed misconduct but for the employment tribunal to accept your employers belief they will want to know that the belief was reasonable.
The courts have devised a test that the Employment tribunal will want to see that your employer followed in arriving at their belief: for the belief to be seen as reasonable your employer would need to have conducted a proper investigation and from the results of that investigation it be a reasonable conclusion that you did indeed commit gross misconduct.
Reasonableness of the dismissal
Your employer will need to focus on the reason for the dismissal not least because the burden will be on them to prove such reason.
However, simply having dismissed for a potentially fair reason will not be sufficient to render the dismissal fair overall.
Once your employer has established a potentially fair reason for dismissing you, the Employment Tribunal will consider whether your employer acted reasonably in dismissing you for that reason. The burden here is neutral; reasonableness is question for the tribunal.
The approach to this question will differ depending on the nature of the reason relied upon.
- It will depend on whether in the circumstances (including the size and administrative resources of your employer’s undertaking) your employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing you, and
- Shall be determined in accordance with the equity and substantial merits of the case.
This test is objective and it is recognised that there is often no one correct response to a particular situation. Therefore the question is whether, in the particular circumstances of your case, the employer’s decision to dismiss fell within the range of reasonable responses that a reasonable employer in those circumstances and business might have adopted.
The consideration of reasonableness will predominantly include questions of whether dismissal was a reasonable response to the matter in hand and also the procedure used to dismiss. The ACAS Code dictates the procedure which should be used and the tribunal will take non-compliance into account in those cases when assessing reasonableness.
Employer terminating employment
A dismissal is effective upon communication. Ordinarily, this would be by letter although it might also arise orally. Either way there must be a specified or ascertainable date on which the relationship is to cease.
The dismissal must be by someone with actual or ostensible authority.
Once notice of dismissal is given, it cannot generally be retracted without the agreement of the employee.
If you have received a letter inviting you to a disciplinary hearing for alleged misconduct, contact us immediately for advice how to conduct yourself at that hearing.
If you have been dismissed for misconduct and you feel this was unfair, or you are unsure, make an appointment with us and an experienced employment solicitor will give you free assessment of your case.
Be aware that if you ultimately wish to bring a claim to the Employment Tribunal you will usually need to do so within 3 months of your termination – so do not delay.