The main issue here is that because this person has over 2 years’ service with you, they are protected against unfair dismissal and to fairly dismiss them you must be able to show that you had a potentially fair reason for dismissing them and also follow a fair procedure.
Misconduct is a common reason for taking disciplinary action and it is also a potentially fair reason for dismissal under the Employment Rights Act 1996. It could be a single act of serious misconduct or a series of less serious acts over a period of time.
However you are unlikely to be able to rely just on the letter you received because that would not directly be linked to the job he does now and you must be able to show there were reasons in their present employment which justify dismissal.
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.
There will always be a risk however because even if you believe you have followed all of the above requirements, the employee can still make a claim for unfair dismissal against you and it would then be for you to prove that the legal steps I explained has been followed and that the dismissal was fair. So you may have to formally justify your decision, should they decide to formally challenge this at tribunal, although of course there is no guarantee it would come to that, especially as they may be out off by the fees they have to pay to claim.