Any claim for unfair dismissal must go through a 2-stage test:
This means that an employer can dismiss an employee for a perfectly valid reason, but the way in which the dismissal was handled was unreasonable, so that the dismissal becomes unfair.
Reasonableness of the dismissal
The second part of the test requires the tribunal to consider 2 factors – firstly, whether the employer used a fair procedure and secondly, was it reasonable for the employer to finally decide to dismiss the employee once the procedure had been carried out?
For any disciplinary action started on or after 6 April 2009, an employer will be expected to follow the ACAS Code of Practice on Disciplinary Action. The minimum steps under this code are:
If this minimum procedure is not followed then that fact will be taken into account by an employment tribunal, and it may well mean that the dismissal will be unfair, but not necessarily.
This Acas Code applies whatever the reason the employer is considering disciplining the employee (eg misconduct, sickness absence, poor performance) EXCEPT THAT it does not apply to redundancy dismissals or retirement dismissals.
However an employer who makes an employee redundant without following any procedure may well find the dismissal being held to be unfair by a tribunal.
The reasonableness of the decision to dismiss
This appraisal incorporates what is sometimes called the band of reasonable responses test. The question posed by this test is: was the employer’s response to the situation one which a reasonable employer acting reasonably might have made? This recognises the variety of responses possible in any set of circumstances, with dismissal representing an extreme end of the spectrum.
For example the Acas Code of Practice suggests that employers have disciplinary procedures which allow for a range of possible sanctions:-
This does not mean that an employer who jumps straight to dismissal for a first “offence” will necessarily be found to have dismissed the employee. A serious, one off offence (eg fighting, harassment of a colleague, theft from the employer) might all justify dismissal without any warnings being given.
An employment tribunal would consider some of the following in appraising the reasonableness of the employer’s decision to dismiss an employee:-