Procedural errors can lead to an unfair dismissal

A recent Court of Appeal decision has reaffirmed that procedural errors made during a dismissal process can amount to an automatically unfair dismissal. 

The case in question concerned two employees found to be guilty of gross misconduct and thus summarily dismissed from employment. As per the procedures set out in the ACAS guidelines a full and through investigation must be carried out before a dismissal of this nature is made. The Employer must hold a genuine belief that the employee is guilty and should not act upon a mere suspicion. This should be backed up by the aforementioned investigation and should be reasonable resolution in the circumstances. 

Even if the employee is proven to be guilty of the misconduct, if there are procedural errors, they may still be successful in their unfair dismissal claim. Unsustainable or inconclusive finding, failing to look at all external factors that may influence or affect the actions of the employee, and uncollobrative evidence will all be deemed to show an inadequate investigation. As such the investigation will be deemed not to have given the employer a genuine belief of guilt and thus the dismissal will have been made unfairly.

Further in relation to automatic suspensions, the Court of Appeal considered that automatic suspensions in these cases can sometimes be deemed a knee jerk reaction. Suspension should only be used when there is a risk of the investigation being jeopardised, or that the employee poses threat of reoffending. Further if they are deemed a risk to other members of staff then this would also justify a suspension. Other than this a suspension might be deemed a pre determined act of guilt. 

The key here is to make sure that in serious circumstances, no knee jerk reaction or emotional feelings lead an investigation. Make sure that all procedural steps are undertaken, especially in regards to suspension and investigation. 

Published: 09 Jul 2012

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