Recently Citibank was sued for unfair dismissal. The bank had dismissed an employee who had travelled to Amsterdam on business. He submitted a modest expenses claim for two sandwiches, two meals and two coffees which was well within the permissible daily expenses allowance. The bank was curious to know why he had consumed double portions in one sitting. He said that one coffee was very small and then complained that he should not be forced to explain his eating habits. It transpired that he had in fact travelled with his partner and was claiming for them both. Citibank dismissed him for gross misconduct on the basis that items claimed breached the policy about who can claim for expenses and the employee was less than frank when challenged.
So, who won in the tribunal?
It was Citibank. Read on to discover why and to understand how to avoid dismissing unfairly.
Topics to be answered in this article
What is unfair dismissal?
Unfair dismissal simply means dismissing someone without establishing a potentially fair reason and applying a proper process. It is not to be confused with wrongful dismissal which is a simple situation where employment ends without due notice. Remember, any time you dismiss an employee they are entitled to be paid in lieu of notice unless they are summarily dismissed for gross misconduct.
What is the ground for unfair dismissal?
There are 5 potentially fair reasons to dismiss an employee:
- Misconduct
- Incapability
- Redundancy
- Illegality (eg. expired visa)
- And ‘some other substantial reason’ (habitually this catch all is reserved for cases involving an unresolvable relationship breakdown).
A dismissal must fall within one of these categories and more than that you must act reasonably in treating that as a sufficient reason for dismissal. ‘Acting reasonably’ means understanding the issue, exploring it and investigating and coming to informed, reasoned and reasonable decisions on the strength of compelling evidence.
What’s the procedure for dismissing someone?
In Citibank’s case it involved misconduct which means that they needed to investigate. First, they looked at their expenses policy and then they spoke to the employee informally. Then he was invited to an investigation meeting. The bank reviewed all its evidence and decided to proceed with a disciplinary hearing. The employee was invited to that hearing and was told that he was entitled to bring a colleague. The letter set out the allegations against him and warned him that if the allegations were upheld it might result in dismissal.
The employee was then provided with all the evidence that the bank had gathered during its investigation process. The person who conducted the disciplinary hearing was different to the person who had conducted the investigation to ensure absolute impartiality and independence of mind. The decision-maker then wrote to the employee to explain their findings of fact and setting out why the decision to dismiss had been made. The employee was given a right to appeal and an appeal hearing was heard by another decision-maker.
These are always the fundamental characteristics of any sound decision-making; investigation, disclosure, representation, warning, a clear hearing process and appeal. Procedures will of course vary according to which of the 5 potential processes is in play.
Please remember that whilst dealing with capability requires a similar structure you will need to apply very particular care when ill-health and disability are present. A performance improvement plan is only of any relevance or use when the employee is actually well enough to engage with it. Always obtain and consider occupational health as part of your evidence pack when you are dealing with capability issues.
Likewise, redundancy has its own particular processes depending on the number of employees involved and how you intend to arrange any competitive redundancy selection exercise.
What happens in an unfair dismissal tribunal?
Did you know that employees have just 3 months in which to bring a complaint of unfair dismissal to the tribunal? In addition, just after dismissal and prior to issuing proceedings in the Tribunal, there is an obligation to engage with ACAS Early Conciliation which exists to help the parties come to financial terms to settle and avoid litigation. If no deal can be done, then the judicial scrutiny of the decision to dismiss proceeds to a tribunal at a stately pace! Make no mistake, Tribunal preparation is time consuming and costly (it is also a no costs regime which means that you will be very unlikely to recover your legal costs from the losing employee in the event that the employee loses their claim).
Most simple unfair dismissal cases can take anything between 2 and 10 days of Tribunal time and there is always a delay before a case is heard (think anything between 12 and 24 months from the actual dismissal before you get to court).
Preparing for Tribunals takes key staff away from their normal duties as you draft witness statements, collate all the relevant documentary material that you possess about the dismissal, disclose your evidence to the Tribunal and your former employee and prepare the trial bundles. Also, even though the employee has to prove the claim for unfair dismissal, the burden is still firmly on you as employer to justify the dismissal. This means that you give your evidence first.
How can Goughs help?
If you wish to protect your business from the risk and costs of unfair dismissal claims, please get in touch with our Head of Employment, Rebecca Dennis, at employment@goughs.co.uk.
Rebecca’s many years of employment law experience ensure she will be fully adept at handling your situation for the benefit of you and your business. Claims through the tribunal system can take years which is not only costly, but stressful and a drain on your resource. So stay ahead of the game, get robust and tailored advice today and future-proof yourself against claims.
