Unfair dismissal for gross misconduct: an SME guide

Employment law can be very tricky for small businesses and getting it wrong can prove costly. Simple advice can save you substantial amounts of time and money.

Any disciplinary policy you have should be followed it to the letter, says Stephanie Kleyman from Kleyman & Co solicitors. If you don’t have a policy, look on ACAS’s website for guidance and follow their standard policy,” she advises. “Make sure that your employee is notified before every meeting of their right to be accompanied by a work colleague or trade union representative, and ensure you make reasonable provision to accommodate this.”

After every meeting, make sure you confirm everything in writing to the employee.

Grounds for dismissal

If you feel that the evidence against the employee is sufficient to justify taking action – especially summary dismissal for gross misconduct – you must be certain that this is the only reasonable course of action in the circumstances.

“You will need to take into account all the evidence, good and bad, from the employee’s length of service and previous track record through to the offence itself,” Kleyman advises.

How to dismiss an employee

Ideally your disciplinary policy will set out a list of the types of acts or omissions that amount to gross misconduct, such as theft, assault or fraud, so check this situation against that list.

If you decide you have to summarily dismiss the employee for gross misconduct, make sure they are notified as soon as possible both verbally and in writing. Advise them of their right to appeal, giving details of how long they have and who they should appeal to.

Make careful notes as you go through the process and make sure you keep them safe along with copies of all letters sent.

If in any doubt at all, consult a solicitor.  While the cost may seem high, weigh the spend on employment legal advice against the expense of lengthy legal proceedings and possible damages paid to your former employee.

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