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Dismissing for something that's not covered in your policy

29/03/2016

One of the fundamentals of employment law and unfair dismissal is the need for the employer to act fairly and reasonably.

One aspect of this is to make employees aware in advance about what conduct may result in dismissal, i.e. what may amount to 'gross misconduct' which would allow the employer to dismiss without notice (but after following the proper procedure).

The argument being that it would be unfair to dismiss if the employee were not aware of the possible consequence of their actions beforehand. 

I think most of us can understand this, after all, how would you feel if you were dismissed for something that you had no idea could lead to your dismissal!

A recent case highlighted this and also how important it is to get the wording right! In McElroy v Cambridge Community Services NHS Trust an employee was dismissed for coming to work smelling of alcohol. However, the policy on substance abuse did not ban employees from drinking before work or being under the influence of alcohol at work. The policy offered assistance and support for alcohol misuse and stated that the disciplinary procedure would be used in cases of continued misuse.

Therefore the employment tribunal found the dismissal unfair.

Had the policy been clearer and stated that being under the influence of alcohol during working hours may be considered to be gross misconduct, the dismissal would more than likely have been found to be fair.

A final note: take a look at your disciplinary procedure and the list of 'gross misconduct'. This should list those areas that could lead to 'summary dismissal'. This may include more obvious things like fighting and theft, but make sure it also includes any conduct that you would consider serious enough to warrant dismissal. This may include things that are very specific to your industry.

Remember just because it says it may be gross misconduct, it does not mean that in every situation you would dismiss (it will depend on all the circumstances). However, if it's not on the list you may not have this choice (and it's always better to have the choice).

Paula Fisher. You can contact Paula at paula@practical-hr.co.uk


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