We are thinking of dismissing someone due to gross misconduct. We have suspended the employee, but it is likely to be at least a week until they are dismissed. Her line manager has just placed an advert for a replacement on our website, could this be said to be a bit premature?
Peter replies:
It is very much premature and could be potentially fatal to the defence of an unfair dismissal claim assuming she has over two years service. Even if she has short service such an advertisement implies acting in bad faith.
One of the key factors, which determine whether a dismissal is likely to be found to be fair, is that the decision maker approached the matter with an open mind. It is a part of natural justice. Imagine how you would feel if you found out that a decision had already been taken about you, when you thought that the decision-maker was going to listen to all of what you had to say, before carefully weighing things up. Advertising for a replacement suggests that only one course of action is possible i.e. dismissal, hence creating a vacancy.
Biased decision makers, who approach a problem with only one solution in mind, are highly unlikely to succeed with defending an unfair dismissal claim.
You should immediately withdraw the website advert and hope that no-one noticed it! You might be able to justify recruiting someone on a very short-term basis to cover their absence, but you would need to be able to defend your actions and show that the need was urgent, and very definitely for a temp, with no indications of permanency.
You will then need to be scrupulously fair in your handling of the disciplinary issue to further reduce your risk. This means not only being very thorough with your investigations and the disciplinary meeting, but carefully reviewing the nature of the penalty. Just because you are calling it gross misconduct does not mean that a Tribunal will see it the same way. It will need to be sufficiently serious to strike at the root of the contract, and fundamentally undermine the trust and confidence you need to retain them in their job.
Furthermore tribunals will consider whether dismissal is the appropriate response, or whether a transfer or demotion or some other such penalty would have been correct. A tribunal will probably not interfere, but you cannot just jump from a finding of gross misconduct to summary dismissal, without further thought. Factors to consider include:
- previous record,
- length of service
- any mitigating circumstances.
The tribunal will judge the reasonableness of the employer’s decision to dismiss, on the standard of a “band of reasonable responses”, assessing whether the employer’s decision was one which falls outside the range of reasonable responses of reasonable employers.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.
