What is summary dismissal?
Summary dismissal is when an employee is dismissed with immediate effect without any notice or pay in lieu of notice (PILON)
Summary dismissal normally occurs when an employee has committed gross misconduct. Gross misconduct can be justified when the actions of an employee fundamentally undermines the trust between employer and employee, to such a degree that they can no longer work together.
Examples of gross misconduct include:
- Fraud – such as fraudulent expense claims
- Theft;
- Physical violence;
- Insubordination – refusing to obey orders;
- Bullying and Harassment;
- Accepting Bribes;
- Gross Negligence;
- Illegal Activity;
- Alcoholic intoxication or drug use.
When is summary dismissal fair?
Summary dismissal can only be used if there is an immediate need to remove an employee from the company, for one of the above reasons, it cannot be used for acts of misconduct. Employees who are dismissed for misconduct reasons must receive the proper notice.
It is vital that companies proceed carefully with summary dismissal and ensure that they act within the law, otherwise the case can be brought to an employment tribunal and companies can be fined for unfair dismissal.
Fair Process
In summary dismissal, the full fair procedure still needs to be followed, and a disciplinary hearing held. If the decision at the end of the hearing is to dismiss the employee, then this can be done without any notice or giving pay in lieu of notice.
By following a fair process an employment tribunal is less likely to find employers guilty of unfair dismissal.
Fairness is promoted by using rules and procedures for handling all disciplinary cases. These should be in writing and be specific and clear for all to use. Where appropriate, employee representatives should be involved in the development of company rules and procedures. All rules and procedures should be communicated to all employees as it is important that they understand what they are, where they can be found and how they will be used.
Employers wishing to dismiss an employee must ensure that they have followed a fair procedure. The ACAS code of practice is the minimum procedure that companies must follow in any disciplinary or grievance case.
The ACAS code is not the law and companies can have some differences to this procedure to suit their company, however the code is the minimum steps that must be followed. If a dismissal case reaches an employment tribunal judges will look to check the ACAS code has been followed in a fair manner.
The ACAS code applies specifically for employees with employment status, but it is good practice and for good working relationships for this to be applied to all employees and workers.
The summary dismissal process:
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Investigation
Employers must carry out necessary investigations to establish the full facts of the case. In some cases, this will require holding investigation meetings with the employee(s) before any disciplinary hearing takes place and in other cases the investigation stage is the collation of evidence that will be used by the employer at a disciplinary hearing.
In all gross misconduct cases if possible, different people should conduct the investigation and disciplinary hearing. An investigation meeting should not by itself result in a disciplinary hearing and disciplinary action.
There is no statutory right for an employee to be accompanied at investigation hearings, although it is good practice to allow this in company procedures.
Suspension of an employee is sometimes needed, this is normal when gross misconduct has occurred or where the alleged employees could interfere with the investigation if they remain on site.
A suspension should be without prejudice and with full pay. The length of the suspension should be for as brief as possible and should also be constantly reviewed. All suspensions should be confirmed in writing, providing the employee with contact details for a designated person they can contact at the company while they are suspended, details of the alleged misconduct and it should make clear the suspension is not considered a form of disciplinary action.
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Disciplinary Hearings
If an issue requires a disciplinary procedure to be followed, then the employee must be informed of this. This needs to be done in writing and include the following:
- Detailed information about the alleged gross misconduct including any evidence, which may include witness statements and/or any reference to previous conversations or meetings held;
- Possible consequences of the outcome of the meeting e.g summary dismissal;
- Time and venue of where the hearing is to be held and who will be conducting the hearing including company witnesses’/note takers;
- Time for the employee to prepare for the disciplinary hearing;
- The right for the employee to be accompanied at the disciplinary hearing, this can be a member of a trade union or a colleague. This is a statutory right for an employee where the hearing could result in formal disciplinary action being taken against the employee.
Employers must ensure, when inviting an employee to a disciplinary hearing that could result in dismissal, especially when an act of gross misconduct has been committed, that they inform the employee in the invite letter that an outcome could be summary dismissal.
At the hearing, the employer needs to explain the complaint or issue against the employee and go through the evidence that has been collated, including any witness statements. The employee should be given time to set out their case and to answer all allegations made. They also should be given time to ask questions, present their evidence or call any relevant witnesses. Where an employee wishes to call any witnesses, they need to give advance notice of this to the employer.
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Deciding on the disciplinary outcome
After the disciplinary hearing, a decision needs to be made whether disciplinary action is justified, the employee needs to be informed in writing.
Any decision to summary dismiss must be made by a manager who has the authority to do so within company procedure. An employee should be informed of any dismissal as soon as possible in writing along with the reasons for dismissal, date of the dismissal, and any monies owed (holiday pay etc.). The letter should provide the employee with the right to appeal the decision and the name of who the appeal should go to.
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Right to Appeal
Employees have the right to appeal any disciplinary action taken against them if they feel it is wrong or unjust.
An appeal must be made in writing providing reasons and evidence for the appeal.
Appeal hearings should be heard at the earliest opportunity and at an agreed time and place.
The appeal should be dealt with by an impartial manager where possible who has not been involved in the case previously.
Employees must be informed in writing of the results of an appeal hearing as soon as possible.
Costs involved in a summary dismissal
If at an employment tribunal a summary dismissal is found to have been unfair or a wrongful dismissal, an employee maybe awarded up to £25,000. This sum will need to be paid from the company. If an unfair dismissal case is heard in court, then the sum could be higher as there is no upper limit for compensation.
If you require further information or assistance with Summary Dismissal or any other HR issues, please contact Clover HR on 0121 516 0299 or email us at info@cloverhr.co.uk
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