I wonder when an employee can be dismissed summarily

Summary dismissal is the immediate termination of an employee's employment without the need for notice or payment in lieu of notice. This type of dismissal is usually only appropriate in cases of gross misconduct. However, this extreme approach must only be exercised in certain circumstances, and employers must proceed with caution to avoid any potential claims for unfair or wrongful dismissal being made against them.

This article explores the circumstances under which an employee can be dismissed summarily and procedural steps employers must be aware of.

Grounds for summary dismissal

Gross misconduct is a serious breach of contract and includes misconduct that is likely to prejudice an employer’s business or reputation or irreparably damage the working relationship and trust between an employee and their employer. This may include misconduct committed outside of work.

There is no legislation which provides an exhaustive list of actions that constitute gross misconduct, but common examples include:

• Theft or fraud;
• Causing loss, damage or injury through serious negligence;
• Physical violence or bullying;
• Serious insubordination;
• Serious breach of health and safety rules;
• Serious breach of confidence;
• Substance abuse;
• Unauthorised absence; and
• Engaging in activities during a period of sickness absence that are incompatible with an employee’s reason given for their absence.

Procedural fairness in summary dismissal

Even in cases of gross misconduct, employers must follow a fair and reasonable procedure before dismissing an employee summarily. Failing to do so can render the dismissal unfair or wrongful, regardless of the severity of the misconduct. The key steps include:

• Investigation: A thorough and impartial investigation into the alleged misconduct should be conducted. This usually includes gathering evidence and interviewing any relevant witnesses.
• Disciplinary Hearing: The employee should be given a chance to explain their version of events in a formal disciplinary hearing. This ensures that the employee’s perspective is heard and considered prior to any decision being made about their employment.
• Right to Accompaniment: The employee has the right to be accompanied by a colleague or a trade union representative during the disciplinary hearing.
• Decision: After the hearing, the employer should make an unbiased decision based on the evidence presented which should be communicated clearly to the employee.
• Right to Appeal: The employee should be informed of their right to appeal the decision.

Alternatives to Summary Dismissal

Before resorting to summary dismissal, employers should consider whether there are any sanctions short of dismissal that may be more appropriate, such as:

• Written Warning: Issuing a formal written warning for the misconduct, indicating that the behaviour must not be repeated. This type of warning will usually remain active on the employee’s disciplinary record for six months.
• Final Written Warning: A more severe warning indicating that further misconduct will result in dismissal. This type of warning may be used without a first written warning for serious cases of misconduct and will usually remain active on the employee’s disciplinary record for 12 months.
• Suspension: Temporarily suspending the employee (with or without pay) while further investigations are conducted. While suspended, employees must not visit the employer’s premises or contact any of their clients, customers, suppliers or staff, unless authorised to do so. Suspension is not considered to be disciplinary action.

These alternatives can serve as corrective measures, offering the employee a chance to improve their behaviour and avoid the extreme approach of summary dismissal.

Conclusion

Summary dismissal is a powerful tool that should be used sparingly and only in the most serious cases of gross misconduct. Additionally, employers must adhere to a fair and transparent process to justify such an approach. An employer who acts hastily without proper investigation or fails to provide the employee with an opportunity to respond can face claims of unfair or wrongful dismissal. By following these guidelines, employers may be able to protect themselves from potential claims of unfair or wrongful dismissal.

If you have any questions about summary dismissal, our Peace of Mind Team can provide specific advice and our Document Audit Team can help draft relevant policies. Contact our employment law team by emailing employment@warnergoodman.co.uk or by calling 023 8071 7717.