Employment law myths: dismissal

Martha Arnold of Osborne Clarke concludes a series of articles on employment law myths with a look at some myths around dismissal. These include a myth around gross misconduct dismissals. 

Myth: If employees do not turn up for work for a period, they have "dismissed themselves". 

When an employee fails to turn up for work, particularly where he or she does so repeatedly or over a prolonged period, the employer may think that this justifies it treating the employee as dismissed by his or her own actions. Many employers believe that the contract simply comes to an end because the employee has not come to work or made contact. However, the position is not this straightforward. If the employee does not explicitly resign, the employer in this situation will need to take steps to dismiss the employee if it wants the contract to terminate. The procedure that it follows will determine whether or not the dismissal is fair in the circumstances. If neither party expressly ends the contract, it will remain in existence with the employee accruing certain rights and benefits under it, regardless of his or her continued absence.

If an employee is absent without leave (ie absent without a statutory or contractual right or the employer's authorisation), the employer should try all reasonable means to contact him or her, including through emergency contacts. The employer should document its attempts at making contact with the employee and follow up telephone calls with a letter.

If the employee is usually reliable, the absence may be cause for concern and could be the result of an accident or family emergency. The employer should reflect this in its attempts to contact the employee. It should express concern for the employee's wellbeing and not refer to the unauthorised absence in disciplinary terms until more is known about the circumstances.

If the employee returns to work, the employer should interview him or her to try to establish the reason for the unauthorised absence. If there is no acceptable reason for it, the employer can treat it as a disciplinary matter. The length of the unauthorised absence, any mitigating factors and the employee's disciplinary record will be factors that the employer should take into account when considering the level of disciplinary action to take.

However, where the employee remains absent and continues to fail to make contact or respond to the employer's attempts to make contact, the employer may want to terminate the contract. It should follow a fair and reasonable procedure, in accordance with the Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on the Acas website) and its normal disciplinary process, when terminating the contract (particularly where the employee has sufficient service to claim unfair dismissal). Assuming that attempts to contact the employee have failed and he or she has offered no explanation for the absence, the employer should write to the employee to invite him or her to a disciplinary hearing. The letter should:

• set out the periods of unauthorised absence that the employer will consider at the hearing;
• invite the employee to present evidence and disclose mitigating circumstances at, or in advance of, the hearing;
• inform the employee of the right to be accompanied; and
• advise the employee that the consequence of the hearing could be disciplinary action, including dismissal.

The Acas code states that, if an employee is "persistently unable or unwilling to attend a disciplinary meeting without good cause", the employer should make a decision on the evidence available. It is advisable for the employer to have at least one further attempt at a disciplinary hearing if the employee fails to attend the first time, rather than make a disciplinary decision after the first no-show. If it intends to make a decision about disciplinary action in the employee's absence, it should make this clear in the letter inviting the employee to the hearing and that it will make its decision based on the evidence available to it.

If the employee fails to attend the final disciplinary hearing without offering a good reason or prior notification, the employer should write to confirm that the meeting took place in his or her absence. It should confirm the disciplinary sanction and the reasons for it and notify the employee of the right of appeal.

It can be helpful for employers to have a policy setting out the process that they will follow in the event of unauthorised absence. A policy can help to ensure consistency and manage employees' expectations (see Policies and documents > Unauthorised absence policy).

Myth: Employees must have at least two years' service to be able to claim unfair dismissal.

In most cases, for an employee to be able to claim unfair dismissal, he or she must have a minimum period of qualifying service with the employer (s.108(1) of the Employment Rights Act 1996). This period increased on 6 April 2012. An employee must have been continuously employed for a period of at least two years if the period of continuous employment commenced on or after 6 April 2012 or for at least one year if the period of continuous employment commenced prior to that date.

Some employers think that this service requirement applies to claims in relation to any reason for dismissal. However, there are a wide range of reasons for dismissal for which there is no qualifying service. An employer that is unaware of this may be lulled into a false sense of security believing that an employee does not have the right to claim unfair dismissal, when he or she does.

Section 108(3) of the Employment Rights Act 1996 sets out a list of reasons for dismissal that do not require the employee to have a period of continuous service with the employer to be able to claim unfair dismissal. These are dismissals that are defined in certain sections of the Act as automatically unfair and include dismissals for reasons related to:

• pregnancy, maternity leave, parental leave, paternity leave, adoption leave or time off for dependants;
• health and safety, such as reporting a health and safety risk or acting as a health and safety representative;
• working time, such as refusing to opt out of the 48-hour week;
• the making of public interest disclosures (ie whistleblowing);
• the national minimum wage; and
• trade union membership or activities.

See Employment law manual > Termination of employment > Unfair dismissal > Circumstances in which the minimum service requirement does not apply for more details of the reasons for dismissal for which the continuous service requirement for unfair dismissal claims does not apply.

Myth: An employer can dismiss an employee instantly if he or she has committed gross misconduct.

Many employers are familiar with the concept of dismissal without notice (ie summary dismissal) in cases of gross misconduct. However, employers' right to dismiss summarily can be confused with a right to dismiss instantly. Some employers believe that, if an employee has committed gross misconduct, they can dismiss him or her "on the spot". An employer that dismisses an employee instantly, without going through a disciplinary procedure in line with the Acas code, risks unfairly dismissing him or her and may be vulnerable to a successful unfair dismissal claim if the employee has sufficient service to lodge a claim. Failure to follow the code can result in the employment tribunal adjusting compensation by up to 25%. For a dismissal for misconduct to be fair, the employer must be able to demonstrate that:

• at the time of the dismissal, it believed that the employee was guilty of the misconduct;
• it had reasonable grounds for believing that the employee was guilty of that misconduct; and
• it followed a fair and reasonable procedure, including carrying out an investigation.

By carrying out a proper disciplinary procedure, the employer is better able to establish the facts before taking the step to dismiss than if it goes ahead with the dismissal regardless. This will help it demonstrate that its reason for dismissal was genuinely gross misconduct and not due to an automatically unfair reason for dismissal (for which there is no qualifying service to bring a claim (see the previous myth)) or unlawful discrimination.

Further, dismissals for gross misconduct are normally without notice. An employer that dismisses an employee instantly without establishing that he or she did commit an act of gross misconduct, also risks being in breach of contract if it does not give notice or make a payment in lieu of notice.

Martha Arnold (martha.arnold@osborneclarke.com) is a solicitor in the employment team at Osborne Clarke.

Further information on Osborne Clarke can be accessed at www.osborneclarke.com.