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The need for caution and less haste when dealing with employee misconduct

Published 12 July 2021

There can be outrageous acts of gross misconduct for which you believe an employee deserves to be sacked on the spot, but doing so is never a good idea. 

There have been a number of reported cases recently in which it appears misbehaving employees have been dismissed almost instantly. 

But regardless of how bad an act of misconduct may seem, an employee is entitled to a fair disciplinary hearing. 

It is unclear in the cases that received widespread media attention if a disciplinary hearing actually took place. 

However, the speed in which the acts became public, and the swiftness in the announcement the employees in question were dismissed, would suggest not.   

When an ecstatic England football fan who had taken a ‘sickie’ was caught on TV cameras celebrating a semi-final goal against Denmark, she was reportedly fired the next day (1) 

The incident came quickly after an estate agent was apparently sacked for allegedly accosting England’s chief medical officer, Prof Chris Whitty, in a park (2) 

While two brawling binmen were reportedly dismissed after footage emerged of the duo fighting with members of the public (3) 

The specific circumstances of each case are not known. However, it is worth taking a look at if it is ever a good idea or acceptable to instantly dismiss a member of staff for serious bad behaviour. 

If an employee with two or more years’ service is dismissed on the spot they can make a claim for unfair dismissal. The dismissal is very likely to be unfair, at least procedurally.  

Employment law requires that in such a situation an employer  conducts a reasonable investigation and follows a fair disciplinary procedure. 

In addition, an employer is expected to adhere to the ACAS Code of Practice on disciplinary and grievance procedures  (4) 

If an employee has less than two years’ service, the risks with sacking them on the spot are less - but there is still a risk. 

With a short length of service an employee cannot normally make a claim for unfair dismissal (5) 

So, provided the individual is not a whistle-blower or there is no discrimination involved, there is no need to follow a particular procedure.  

However, it is recommended that an employer does follow a fair process, as it is good practice to do so. 

Employment status can also be a fundamental factor in any decision to sack an individual instantly. An employer may be able to sack a ‘worker’ on the spot.  

A  person is generally classed as a ‘worker’ if they have a contract or other arrangement to do work or services personally for a reward (6) 

An individual can also be considered a worker if their contract uses terms such as ‘casual’, ‘freelance’, ‘zero hours’, ‘as required’ or something similar. 

A worker does not have the same employment rights as an employee (hired by an employer to do a specific job and working under an employment contract). 

Even in cases where an employee’s actions are so serious they are sent to prison, there is an expectation an employer will carry out a reasonable disciplinary procedure. 

In 2015 it was reported that a chef was awarded £11k for unfair dismissal after he was dismissed while in prison serving an 18-month sentence for GBH (7) 

And a police officer jailed for killing former footballer Dalian Atkinson was sacked after a fast-tracked disciplinary process in which he admitted his actions on duty amounted to gross misconduct (8) 

An investigation and fair disciplinary procedure should always be carried out as best as possible, even in an employee’s absence,  before any decision is taken to dismiss. 

Regardless of any type of employee misconduct it is essential that a fair investigation and disciplinary process be conducted. A failure to do so could prove costly. 

References: 

(1) England fan dismissed after being caught celebrating a goal against Denmark when they phoned in sick [Internet] metro.co.uk [Cited 12.7.21] https://metro.co.uk/2021/07/09/euro-2020-woman-fired-for-pulling-sickie-to-watch-wembley-semi-final-14899170/ 

(2) Estate agent was apparently sacked for allegedly accosting England’s chief medical officer [Internet] www.bbc.co.uk [Cited 12.7.21] https://www.bbc.co.uk/news/uk-57675176 

(3) Two binmen dismissed after footage of them fighting was leaked.[Internet] uk.news.yahoo.com [Cited 12.7.21] https://uk.news.yahoo.com/binmen-brawl-members-public-124519222.html 

(4) ACAS Code of Practice on disciplinary and grievance procedures [Internet] castleassociates.org.uk [Cited 12.7.21] https://castleassociates.org.uk/employment-law-a-z/acas-code-of-practice 

(5) When can you claim unfair dismissal? [Internet] castleassociates.org.uk [Cited 12.7.21] https://castleassociates.org.uk/employment-law-a-z/unfair-dismissal 

(6) What is a ‘Worker’? [Internet] www.gov.uk [Cited 12.7.21] https://www.gov.uk/employment-status/worker 

(7) A chef was awarded £11k for unfair dismissal [Internet] www.kentonline.co.uk [Cited 12.7.21] https://www.kentonline.co.uk/deal/news/chef-jailed-for-biting-police-39397/ 

(8) Dalian Atkinson was sacked after a fast-tracked disciplinary process [Internet] www.bbc.co.uk [Cited 12.7.21] https://www.bbc.co.uk/news/uk-england-shropshire-57778011 

 

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Tel: 0333 772 0611 

A reputation built on success

For employment law advice or if you are affected or want information and support by any of the issues in this article please give us a call. 

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