In our guide to summary dismissal, our employment solicitors discuss on what grounds you can summarily dismiss an employee and the steps you need to follow to ensure you avoid a claim for unfair dismissal.
Contents:
What is summary dismissal?
Summary dismissal is where an employer dismisses an employee without notice or payment in lieu of notice. This most commonly occurs where there has been gross misconduct.
Difference between a dismissal and a summary dismissal
An ordinary dismissal must be on a fair basis for: capability or qualifications, conduct, redundancy, breaching a statutory restriction, or "some other substantial reason". A fair and reasonable procedure must be followed, and the employee must receive their contractual notice (or statutory notice, if longer) or pay them in lieu of their correct notice.
On summary dismissal no notice or payment in lieu of notice is due. A shorter process may be required when compared to dismissals for poor performance or sickness, for example. However, an employer must still have a fair reason for the dismissal and follow a fair procedure.
When can summary dismissal be used?
Where there has been gross misconduct by way of deliberate wrongdoing or gross negligence or for conduct outside of these but still serious enough to justify summary dismissal.
The ACAS Code of practice on disciplinary and grievance procedures (ACAS Code) describes gross misconduct acts as ‘…so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence’. Case law has defined gross misconduct as conduct which undermines the relationship of trust and confidence to such a degree that the employer should no longer be required to retain the employee.
Fact and law must be considered together before deciding to summarily dismiss. If the gross misconduct relates to deliberate wrongdoing, there should be factual evidence to support that the employee breached an express or implied terms of their employment contract, on purpose.
Gross negligence is a less common form of gross misconduct that can justify summary dismissal. Gross negligence is a serious failure to achieve the standard of skill and care objectively expected of a particular employee in the role they hold with the level of experience they have. Deciding whether capability or misconduct is the issue is difficult and sometimes there is both. It is recommended you seek advice from an employment solicitor before dismissing summarily on this basis.
If conduct is an alleged ground of dismissal in an unfair dismissal claim, a tribunal does not have to consider whether it is gross misconduct before deciding if a dismissal is fair, summary dismissal can sometimes be fair without gross misconduct. Whether the dismissal is fair under the Employment Rights Act 1996 (ERA) depends on whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal not on conduct being gross misconduct.
A series of acts of misconduct can constitute gross misconduct, but if you are relying on this it is prudent to seek legal advice first.
How can you ensure summary dismissal is fair?
The ACAS Code recommends dismissal should not be used for a first act of misconduct other than gross misconduct and recommends employers give examples of gross misconduct in employment documents. This will help to guide employees on when summary dismissal for gross misconduct might take effect including for things like theft, fraud and serious health and safety breaches. Whilst a non-exhaustive list cannot always be relied upon to justify summary dismissal, it establishes clarity and training can be provided if employees have questions.
Just because an employee has committed an offence on the gross misconduct list, the character of the conduct and whether it was reasonable for you to regard that conduct as gross misconduct justifying summary dismissal on those facts and circumstances is relevant to fairness of the dismissal.
The seriousness of a particular breach depends on your business and the employee’s role. Review the facts and consider whether the decision to dismiss was fair in all the circumstances and fell within the range of reasonable responses. A health and safety breach for a nurse working in a hospital may be more serious than the same breach by a postman in the sorting room, context and individual facts will determine whether summary dismissal is reasonable.
If you do not follow a fair procedure, do not act reasonably or you do not dismiss for a fair reason, the employee will have good grounds in an unfair dismissal claim and if you do not pay notice, they may claim wrongful dismissal too. If you are unsure of the procedure or whether a dismissal is fair, seeking early guidance from a specialist employment lawyer is advisable.
Summary dismissal procedure
This should follow your company’s policies and be in accordance with up-to-date ACAS guidance. You may consider a temporary change of role or suspension is appropriate, while you investigate. Read our guide on suspending an employee, for more information.
A full investigation should then be carried out looking at all the evidence. There should be a clear written record, likely to include amongst other things, speaking to witnesses about the subject of the disciplinary allegations, reviewing documents, correspondence, electronic records and reviewing CCTV, if available. The employee should then be invited to a disciplinary hearing in writing within reasonable time and provided with a copy of all relevant evidence. They should be asked if they would like to be accompanied by a trade union representative or a work colleague and whether they have other documents for consideration. The hearing should then be held within a reasonable time and an outcome provided in writing, usually within a few days, advising the employee of their right to appeal the decision.
What to do if an employee appeals a summary decision?
If an employee exercises their right to appeal, you will need to investigate any further points made and any further evidence obtained and hold an appeal meeting within a reasonable time. The employee should be invited to the meeting in writing and informed of their right to be accompanied by a trade union representative or work colleague if they wish. The outcome should be provided in writing within a reasonable time, making clear it is the final decision. If you overturn your original decision, you will need to calculate any backpay due and reinstate the employee advising them that their employment remains continuous from their original start date, as if the dismissal had not taken place.
Alternatives to summary dismissal
If you would like to retain the employee, you will need to be consistent in treatment of similar situations, but there may be alternatives to summary dismissal.
If an employee has otherwise had a good track record and worked for the business for a long time or if there are other mitigating factors, you could offer a final chance to improve and instead issue a final written warning.
Further training, mentoring or closer supervision might assist if negligence or incorrect actions were due to lacking knowledge and one of these alternatives would prevent reoccurrence.
Depending on your business, the role and the disciplinary offence, you may not be able to retain the employee in their current role, but you might offer a different role, possibly a demotion, for their consideration.
If there may be unresolved liability or risk of an employment claim, you might consider offering the employee a settlement agreement. Our employment experts can assist in drafting and negotiating these on your behalf or advising whether this is the best route in your business’ circumstances.
Conclusion
Summary dismissal may not be as straightforward as it first seems. Just because an offence considered as a gross misconduct has been committed, the circumstances and facts surrounding the offence need thorough investigation before disciplinary action is determined. Action taken must be reasonable and follow a fair process. In certain circumstances it may be possible to summarily dismiss if there has not been a gross misconduct offence or if there have been a series of connected misconduct offences. If you are in doubt, speak to our employment solicitors.
