Staff need a reminder over how to behave, writes Donna Reynolds
Employers take note: prepare for the festive season by reminding staff now how they are expected to conduct themselves at the office Christmas party. Unlimited free bars are never a good idea – no matter how much you think it will boost staff morale.
As a matter of common sense, assault and other acts of misconduct such as theft, fraud, harassment and bullying are often considered to be acts of gross misconduct, entitling the perpetrator to be dismissed without notice or payment in lieu. They are often listed as such in employers’ disciplinary policies. However, a frightening number wrongly believe an act of gross misconduct warrants on-the-spot dismissal without the need for any investigation into the conduct complained of or a disciplinary hearing. In a small number of instances, there might be a good business reason to immediately expel the employee in question but in all other cases, suspension can be a helpful tool to defuse the situation and afford the employer the time to initiate the disciplinary procedure.
Others do not afford employees with less than two years’ service to the right to know the case against them and state their case (nor the right of appeal), believing that they do not qualify for protection from unfair dismissal. But there are a number of exceptions to this general rule and tribunals will explore any argument made by an ex-employee as to the real reason for their dismissal.
But what about those cases where the employer has done everything “by the book”? The employee has been suspended on full pay pending an investigation; a reasonable investigation has been undertaken; the charges are properly framed and clearly set out in the written request to attend a disciplinary hearing; copies of all evidence have been provided and the employee has been informed of their right to be accompanied and call witnesses; the disciplinary hearing is conducted fairly and the employee has a genuine belief the employee assaulted a colleague. Can the employer safely dismiss?
In this scenario, dismissal may seem a no-brainer but claimants are winning unfair dismissal cases in the Employment Tribunal because employers forget or don’t realise that a finding of gross misconduct is only half the story. Dismissal should not be assumed to be the “only option” available as to label misconduct as gross misconduct does not, of itself, justify dismissal. The question that should be asked is whether dismissal for that act of gross misconduct is a reasonable sanction or, in other words, does dismissal fall with a range of reasonable responses available to the employer?
To answer this question, it is necessary to consider whether or not there are any mitigating circumstances - for example, was the employee provoked or acting in self-defence or suffering from stress? It is important to consider length of service, previous disciplinary record and the employee’s usual conduct.
Mitigating factors relevant to both the individual and the circumstances are to be taken into account when deciding on the sanction. Failure to do so could see the dismissal falling out with the range of reasonable responses resulting in an unfair dismissal.
The free bar at the Christmas party is not therefore a good idea all when you consider that it could be the deciding factor whether or not a dismissal is a fair.
• Donna Reynolds is a partner with CCW Business Lawyers, www.ccwlegal.co.uk