Summary Dismissal – An employer’s rights!

Lord Alan Sugar makes it seem OK to do, but a simple, “you’re fired!” declaration to any employee will not wash in real life.

Beyond the realms of television, immediate dismissal does exist! However, instantly lawfully firing an employee involves more than the point of a finger.

Read on to find out everything you need to know about summary (instant) dismissals and what the process really involves.

What is Summary Dismissal?

Summary dismissal is the immediate or ‘instant’ termination of an employee’s contract due to their behaviour or actions. It can be done without due notice or payment in lieu of notice (PILON).

It is important to note that, regardless of the grounds for dismissal, employers should always act legally and fairly.

Usually, this will involve providing sufficient notice or PILON in line with the contract of employment. By not giving an employee adequate notice, then they could have a case for wrongful dismissal.

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What is an Acceptable Notice?

It would be best if you remembered that summary dismissal is not the same as ‘dismissal with notice’.

When terminating a contract of employment, the employers must give either:

• The length of notice cited in their contract of employment
• Or the legal minimum notice period

The legal minimum notice is:

• One week’s notice: for those employed between one month and two years
• One week for each complete year of employment: for those employed between 2 years and over. This is capped at 12 weeks.

Misconduct & Gross Misconduct

For an employer to lawfully dismiss an employee without notice or PILON, there needs to be proof of a fundamental breach of contract.

The most common grounds for summary dismissal are due to acts of gross misconduct.

There are many examples of actions that can fall under the heading of gross misconduct. The rule of thumb is that an employee has committed an act that irreparably destroys the trust between them and their employer.

Examples can include:

• Vandalism or damage to property
• Discrimination or harassment of a colleague
• Theft or fraud
• Breaching health and safety rules
• Attending work under the influence of drugs
• Violent behaviour
• Sabotaging client or supplier relationships
• Serious insubordination
• Being absent without permission (AWOL)

It is important to note that what constitutes gross misconduct can vary between organisations. Therefore, all employers need to be clear about their expectations and exclusions.

All forms of dismissal – whether they be immediate or with notice – need to be done in a fair and reasonable manner. Doing so can help to avoid grounds of unfair dismissal, tribunal complaints or recourse to the business.

Communicate Your Procedures

To omit the potential for procedural flaws, ensure that you communicate your policies to your staff frequently.

It would be best if you were clear about the expected rules and standards of behaviour to prevent or deter cases of gross misconduct. You could use an employee handbook or contract to confirm this.

If necessary, ensure all staff have a hardcopy of dismissal procedures. It is worth requesting that employees sign to confirm they understand the process, along with details of the consequences of untoward actions.

As already pointed out, what can fall under the heading of misconduct, inappropriate, offensive, or unacceptable behaviour can vary between companies. This is due to nuances in business and culture. It is therefore vital for all organisations to be clear on their disciplinary rules.

ACAS states that all policies should:

• give examples of what actions will be classed as gross misconduct
• emphasise that the list is not exhaustive

More information on the ACAS Code of Practise on Disciplinary and Grievance Procedures can be found on their website.

Summary Dismissal: The Procedure

Despite being referred to as an ‘immediate’ or ‘instant’ dismissal, it does not involve an employee simply being sacked on the spot!

There is a process to follow in order to carry out a fair and legal summary dismissal. Not adhering to the procedure can result in an employer being guilty of unfair dismissal.

If you feel that summary dismissal is your only viable choice, then the outline of your disciplinary procedure should follow the following format:

• Ensure that you are clear on whether you will suspend the employee
• Carry out your initial investigations and compile concrete evidence to support your allegations
• Interview any relevant witnesses and take statements
• Invite the employee to a disciplinary hearing
• Hold the hearing
• Conclude an outcome

Invites & Letters

A crucial part of following a fair process is to be open and transparent with the employee. This involves ensuring that all correct paperwork and letters are sent when necessary.

The paperwork in question can include any invitations to investigative meetings, disciplinary hearings, and the final letter of dismissal (if necessary.)

It is vital to keep written records. If an appeal takes place, then a tribunal will dissect all letters and invites for instances of confusion or inaccuracies.

All letters and invitations need to be clear and concise as this will ensure that any misinterpretations or disputes can be avoided.

With reasonable notice before the hearing, an employer should provide an employee with the following in writing:

• the alleged misconduct or performance issue
• any evidence from the investigation
• other relevant information they plan to talk about
• the date, time, and location of the meeting
• information about the employee’s right to be accompanied to the meeting
• the possible outcomes

More information and letter templates are available on the ACAS website.

The Investigation Process

Some employers choose to suspend employees while they carry out investigations. If you do decide to do this, then you will need to be succinct and clear about what this means for them.

Unless their contract states otherwise, you will need to continue paying your employee on their full salary during their suspension. It would help if you were also clear that the suspension is not a sign of the outcome, nor is it a form of punishment or penalty.

Your investigation process should determine whether the act is classed as gross misconduct and evidence this using the handbook or employee regulations.

You will also prove that the act was enough to destroy trust and confidence in the working relationship.

Another critical point is that the hearing should take place as soon as possible after the investigation has concluded.

Appeals for summary dismissal

All employees who have been subject to a summary dismissal have the right to appeal the decision. This will initially need to be done through the company appeals process. The process will need to be set out in your communication with the employee.

Some employees may still refuse to accept your findings and maintain that their actions were not offensive.

To safeguard against potential wrongful dismissal claims, ensure that:

• You have grounds and evidence to show that their actions threatened or damaged the integrity of the company.
• Their actions negatively impacted the workplace.
• You have followed the procedures as set out above.

No employer gets satisfaction from dismissing an employee. We understand that a disciplinary hearing and the outcomes may be coupled with feelings of guilt, worry and many questions!

If you find yourself in a situation where you feel an employee needs to be summarily dismissed or you want further advice or guidance, then we are here to help.

Contact one of our employment lawyers today to receive guidance, and assurance you are looking for.