Yes, it is highly likely that you can dismiss them but you need to have a fair reason for dismissal and follow a fair process.
You need to investigate properly and collate evidence. Consider whether you can do this with them at work. It might make sense to suspend them whilst you investigate so that they cannot tamper with the evidence or intimidate any witnesses.
Once you’ve investigated, determine if you have cause to make allegations that warrant a disciplinary hearing. Make sure that you invite the employee to a hearing in writing, tell them what the allegations are and provide copies of the evidence that you intend to refer to at the hearing. You should give them reasonable notice of the hearing (at least 48 hours) and if it is potentially a dismissable offence, you need to tell the employee that fact in the letter inviting them to the disciplinary hearing.
Think about who is the most appropriate person to hear the disciplinary. Don’t compromise the process by appointing someone who is prejudiced or not the right level of seniority. You need to think ahead about who is available to hear any appeal and make sure that they remain out of the process until the appeal stage.
Employees have a right to be accompanied to disciplinary hearings by a work colleague or trade union representative of their choice. They can request a postponement of the hearing of up to 5 working days if the employee’s chosen representative can’t make the date that you have set for the disciplinary.
At the hearing, you should go through the allegations with reference to the evidence and give the employee a reasonable opportunity to respond to the allegations.
Prepare an outline script of what you want to cover in the disciplinary hearing and use that as a template for the minutes.
I recommend that you adjourn the hearing before you give the employee your decision. This can be a 10 minute break on the day before you bring the employee back into the room and conclude the hearing or if you need more time to investigate matters that arise during the hearing or you think that things could become unpleasant if you deliver the decision face to face, you can tell the employee that you will provide your decision in writing. Either way, you have to write to the employee to give the decision in writing and provide details of their right of appeal. Send a copy of the minutes of the hearing with the decision letter.
The person hearing the appeal should ideally be someone more senior than the disciplinary hearing officer and should not have been involved in the investigation and disciplinary process.
If the employee appeals, the employee should be invited to attend an appeal hearing in writing unless they have requested that the appeal is dealt with in writing.
The appeal officer should review all of the letters, minutes and evidence in light of the grounds of appeal and make their decision with reference to those grounds.
The employee must be given a fair hearing. If the grounds of appeal are not clear, ask questions to clarify them.
Make sure that you give the employee adequate opportunity to prepare for an appeal hearing.
The appeal officer can uphold the decision, overturn it or reduce the sanction but they cannot increase it. This means that if someone has been issued a written warning the appeal officer cannot impose a final written warning or dismiss the employee for that offence. They can uphold the written warning, take it off the employee’s disciplinary record or reduce it to a verbal warning.
The appeal decision should be confirmed in writing. If an appeal hearing took place, the minutes of the hearing should be sent to the employee with the decision letter.
This might sound like a long process but it really doesn’t need to be. It’s just a couple of meetings and creating the evidence to back up the company’s decisions. Follow these simple steps and you can save yourself the unnecessary hassle of Tribunal litigation.
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