How Not To Dismiss An Employee – Dentistry Magazine

Published in the Dentistry Magazine 09.07.09

Picture the scenario:  you have a thriving practice, there are no clinical issues and the world is a rosy place.  The only problem is your receptionist; she has been with you for 18 months, is quite good at her job, but is often late for work.  You discussed this informally and she improved briefly before going back to the same pattern.  Last week it happened again and you said, in passing, that this was her last warning.  She has just come in late again and you dismissed her.  As far as you are concerned she has had her warning and she cannot say it was a surprise.

The above is a familiar scenario as many employers take no formal disciplinary steps before they are ready to dismiss.  The danger with this approach is that it can lead to a successful unfair dismissal claim.  The statutory cap on the amount of compensation which can be awarded in such claims is £66,200.

The ACAS Code of Practice on Disciplinary and Grievances Procedures (the “Code”

  • Notify the employee by letter that the conduct issue (ie poor time-keeping) will be dealt with as a disciplinary matter.
  • The letter should include arrangements for a disciplinary hearing and advise that the employee may be accompanied.
  • Best practice includes advising the employee that dismissal is a possible sanction (if relevant).
  • Give the employee an opportunity to present any defence at the hearing.
  • Make a decision only after consideration of what was said at the hearing.
  • Confirm the decision in writing and notify of the right to appeal.
  • Any appeal should be chaired by someone more senior than at the original hearing.

Due to the failure to follow the above process the dismissal of the receptionist is likely to be unfair.  The potential liability for a Tribunal award is significant, and the way to mitigate such risks is to formalise such situations before reaching the “end of your tether”.  In the scenario the receptionist could have been formally disciplined following the first or second instance of lateness, with a series of formal disciplinary warnings elevated in seriousness on each occasion.  Such steps would provide a clear paper-trail detailing formal warnings, the importance placed upon time-keeping in that role, and a warning of possible dismissal if improvement was not seen. Against that setting the eventual dismissal of the employee would be far more likely to be justifiable as fair before an Employment Tribunal.

Those who have staff management issues would be well advised to seek advice at an early stage, particularly before effecting dismissals or taking disciplinary action. A process-driven approach at an early stage can save a great deal of time and cost in the future.

Naylah Hamour is a senior solicitor working in the employment team at Hempsons and has significant experience in advising on both non-contentious and contentious employment law issues.  She advises employers on topics such as redundancies, recruitment, performance-management, sickness absence, disciplinary and grievance issues, as well as contracts, policies and procedures. She also deals with the full spectrum of employment tribunal claims.