Where an employer has dismissed because of an employee’s conduct, the tribunal will ask a number of different questions to determine whether or not the dismissal was unfair or not. Those questions are set out in the well known case of British Home Stores Ltd v Burchell  ICR 303.
The tribunal will consider:
- Whether the employer had a genuine belief that the employee was guilty of the misconduct,
- Whether the employer formed that belief on the basis of a reasonable investigation; and
- Whether, considering all the circumstances, a reasonable employer would have dismissed the employee for that misconduct.
- Tribunals are not allowed to “substitute” their own judgement for that of the employer and decide whether they would have dismissed in the circumstances.
Instead, they have to decide whether the employer’s decision was a reasonable response to the conduct and the circumstances of the case.
When deciding whether a conduct dismissal is unfair, a tribunal will look at all the circumstances, including:
- Whether the employee was given any prior warnings;
- Whether the employer treated the employee in an unfairly different way to the way it treated other employees who had done the same thing;
- How serious the conduct was;
- Whether the investigation was fair, and looked for mitigating circumstances;
- the employee’s length of service, and whether they were likely to repeat the conduct;
- What any staff handbook or policies say about the type of conduct.
The ACAS code
When deciding whether a conduct dismissal is fair or not, the employment tribunal will have regard to the ACAS code on disciplinaries and grievances, which sets out guidance for employers to follow.
The key steps in the ACAS code are as follows:
- A fair investigation that establishes the facts of the case without unreasonable delay.
- Informing the employee of the problem and the conduct alleged in clear terms that they can understand clear letter that informs the employee of the conduct alleged of him or her;
- A fair disciplinary hearing, at which the employee has the chance to explain their side of the story and be accompanied by a colleague or trade union official or representative.
- A fair decision, taking into account the disciplinary rules of the organisation.
- An opportunity to appeal, including an appeal meeting.
What is gross misconduct?
Gross misconduct is often considered to be misconduct which is so bad that it “repudiates” the contract of employment between the employer and employee, ie actions so bad that they destroy the relationship of trust and confidence that is integral to every employment contract. Examples of gross misconduct often include theft, fraud, committing criminal offences, violence, dishonesty or gross negligence.
If you are found to have committed gross misconduct, your employer may be able to dismiss you without paying your notice pay. However, if they are unable to persuade a court or tribunal that you in fact were guilty of gross misconduct, you will have been wrongfully dismissed, and they may be required to pay you the notice pay damages.
Contact Our Unfair Dismissal Lawyers
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