Hi, thanks for getting back to me. Whilst it is your right to take this to tribunal and claim unfair dismissal if you feel the dismissal was not done fairly, there are certain risks involved with doing so. First of all you will have to pay tribunal fees to pursue this and as they are over £1k, in the event you lose or drop the claim you will not get these back.
In rare circumstances the employer can also pursue costs against you if they warned you not to proceed any further because you have a weak claim but you did so regardless. It is not that common but it can happen so bear that in mind.
You also need to take into account what will happen procedurally when such a claim is made. In an unfair dismissal claim the employer is expected to show that the dismissal was fair and that a fair procedure was followed. If they can do so they can defend the claim and you will lose. So it is not so much for you to prove the dismissal was unfair but for the employer to show that it was fair.
In order to justify that dismissal on grounds of misconduct was fair, the law requires that the employer:
- Conducts a reasonable investigation;
- Follows a fair disciplinary procedure;
- Has reasonable grounds for believing the employee was guilty; and
- Show that dismissal was a decision that a reasonable employer would have taken in the circumstances.
In addition, the employer is expected to follow the ACAS Code of Practice on disciplinary and grievance procedures. Altogether, it means that a disciplinary procedure should be conducted as follows:
1. Investigation - a reasonable investigation is needed. What is reasonable depends entirely on the circumstances and especially the nature and seriousness of the allegations. The more serious these are, the more detailed the investigation needs to be.
2. Disciplinary hearing - if the investigation provides sufficient evidence of misconduct, the employee may be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including details of the allegations, allowing them time to prepare. They have the legal right to be accompanied at the hearing but only by a trade union representative or a colleague.
3. Decision and penalty - following the disciplinary, if the employer holds a genuine belief that the employee was guilty, then they can go ahead and dismiss. When deciding on whether dismissal is appropriate, the employer should consider the nature and seriousness of the offence and the employee's length of service and disciplinary record. They also need to act with a degree of consistency if other employees have previously been disciplined over similar issues.
In summary, an employer is not expected to prove that the alleged misconduct had definitely occurred. Disciplinary action will be fair if the employer can show that it had conducted a reasonable investigation, followed a fair procedure and held a genuine belief that the employee was guilty. Finally, it must show that the penalty was a reasonable action to take in the circumstances and one that a reasonable employer would have taken.
If there are any doubts or evidence that the above requirements have not been satisfied, a claim for unfair dismissal can be made in the employment tribunal. Hope this clarifies your position?