The document provides a comprehensive guide on fair dismissal and effective discipline, outlining various reasons for dismissal such as lack of qualifications, misconduct, redundancy, and incapability, while emphasizing the importance of following correct procedures. It details legal considerations, types of misconduct, and factors that can influence the fairness of a dismissal. Additionally, the document addresses employee rights regarding appeals and suggests best practices for handling disciplinary processes.

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Fair Dismissal
Effective Discipline
MTL Course Topics
Fair Dismissal
EFFECTIVE DISCIPLINE

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Fair Dismissal
Effective Discipline
MTL Course Topics
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Fair Dismissal
Effective Discipline
MTL Course Topics
ARE YOU READY?
OK, LET’S START!

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Fair Dismissal
Effective Discipline
MTL Course Topics
INTRODUCTION
Dismissal is the ultimate step in discipline, either because
the seriousness of conduct breaches the trust necessary in
the employer-employee relationship or because earlier
cases of ill-discipline have not been resolved and are
continuing wilfully. A decision to dismiss should never be
taken lightly in the heat of an emotive moment, but as a
considered response to the way an individual has failed to
meet his or her contractual obligations.

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Effective Discipline
MTL Course Topics
THE ENDING OF CONTRACTS
A contract of employment ends when one or other side of
the agreement brings it to a close. There are in general six
different ways in which contracts come to an end...
1. Employee resignation. To make sure an employee is
freely repudiating the contract when he or she resigns,
obtain a signed statement.
2. Mutual agreement. Mutual agreement is often the
outcome when one side approaches the other to terminate
employment.
3. Contract expiry. A contract made for a fixed period comes
to an end on the termination date.
4. Contract frustration. Circumstances prevent one or other
side from meeting their obligations.
5. Constructive dismissal. The actions of the employer are
force the employee to leave.
6. Dismissal by the employer. To be effective, any dismissal
by the employer must be fair and reasonable.

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Fair Dismissal
Effective Discipline
MTL Course Topics
FAIR OR UNFAIR?
When a dismissal is for one of the following reasons, it can,
if carried out correctly, be regarded as fair: lack of
qualifications; incapability; misconduct; redundancy;
pregnancy outside a protected period; when continued
employment would be illegal; some other substantial
reason.
A correct process is determined by whether the facts of the
dismissal are reasonable in all the circumstances. One factor
determining "reasonableness" is compliance with an agreed
disciplinary policy and procedure.
When the dismissal is for one of the following reasons, and
no other reason, it is likely to be unfair: union membership;
pregnancy within a protected period; business transfer;
redundancy contrary to accepted practice.

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Effective Discipline
MTL Course Topics
DISMISSAL AND THE LAW
A dismissal is effectively the ending of a contract between
two parties. As such, it is subject to three different kinds of
laws.
A. Employment legislation. Current employment legislation
lays down provisions for timescales, consultation
procedures and fair dealings in areas such as redundancy
termination and termination due to pregnancy.
B. Fair or unfair dismissal. "Fairness" is a vague concept but
one central to much of UK law. A decision about whether a
dismissal is fair or not depends on all the circumstances of a
case as well as how it was handled.
C. Wrongful dismissal. A wrongful dismissal is one where an
employer breaks the contract without just cause and not
because of the behaviour of the employee. An example
could be where a post you filled is given to someone else.

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Effective Discipline
MTL Course Topics
CONTRACT FRUSTRATION
When a contract of employment is frustrated, there is no
dismissal and no resignation, but the contract can no longer
be continued.
There are three conditions for a frustrated contract:
1. something must happen that was unforeseeable at the
start of the contract
2. the event must totally prevent the continuation of the
contract
3. the circumstances must be without fault of either
employer or employee.
Examples of contract frustration are...
• long-term illness
• disability
• imprisonment.

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Effective Discipline
MTL Course Topics
CONSTRUCTIVE DISMISSAL
A constructive dismissal occurs when an employer behaves
is such an unreasonable way that the employee is justified
in breaking the contract and leaving.
Some of the following actions might be grounds for
constructive dismissal:
1. changing the employee's pay, conditions, or status
without his agreement
2. taking someone else on to do the employee's job
without explanation
3. demanding more from the employee than from others
in the same job
4. seriously undermining the employee's authority
5. denying the employee's rights
6. acting unfairly
7. treating the employee badly in public
8. trying to force the employee to resign.

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Effective Discipline
MTL Course Topics
LACK OF A QUALIFICATION
The ability of an employee to do his or her job is at the
heart of the contractual relationship at work. Where a job
relies on an employee possessing a qualification, such as a
professional award, a set amount of experience or the
proven demonstration of certain skills, failure to have or
keep the qualification is likely to be grounds for discipline
and dismissal.
Dismissal for not possessing a vital qualification is likely to
be fair and reasonable in the following circumstances...
1. the employee was told of the need for the qualification
as a condition of service
2. in the event of the employee losing the qualification,
you gave him reasonable time to re-qualify
3. the employee knowingly lied to you
4. there are practical and/or legal reasons for possession
of the qualification.

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Effective Discipline
MTL Course Topics
SICKNESS INCAPABILITY
Dismissal due to sickness incapability is likely to be fair and
reasonable in the following circumstances...
1. sick leave has been exhausted
2. you have advised the employee in writing of the
possible dismissal if he fails to return to work
3. you have asked him in writing when he is likely to return
and failed to receive a date
4. the employee remains medically unfit
5. you have received a doctor's report which indicates that
the employee will not be fit
6. you have good reasons for arguing that you cannot
leave the job open any longer
7. you have considered other employment for which he
would be suitable but have good reasons for not
offering it.

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Effective Discipline
MTL Course Topics
INCAPABILITY
No contractual relationship between an employee and
employer can be sustained if the employee fails to maintain
a reasonable level of performance.
What is "reasonable" may be determined by precedent and
the standards of the immediate group, organisation or
profession.
Dismissal for incapability is likely to be fair and reasonable in
the following circumstances...
1. there is recorded evidence of bad work
2. the employee has been told of the poor work and the
possible consequences through previous warnings
3. the poor work continues during the period of a live
warning
4. help has been offered in the form of training and
counselling but it has made no difference
5. evidence is available that you sought to find the
employee alternative work and there are good reasons
why this cannot be found or offered.

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Effective Discipline
MTL Course Topics
REDUNDANCY
Dismissal for redundancy is likely to be fair and reasonable
in the following circumstances...
1. work of the type done by the employee has ceased or
diminished at his place of work
2. the employee has been fairly selected
3. you can show that you have made energetic efforts to
find suitable alternative work
4. you have been humane in your handling of the matter
5. you have allowed employees time off to look for other
work where it has been requested
6. you have given due notice of the redundancy
7. you have consulted with employees and their
representatives about the method of handling the
redundancies.

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Fair Dismissal
Effective Discipline
MTL Course Topics
STATUTORY PROHIBITION
An employee who becomes unable to carry out his or her
duties because of a statutory prohibition renders
themselves liable to dismissal through being unable to fulfil
their part of the employment contract. Examples are drivers
who receive a driving ban for a long period of time and food
handlers who contract a serious case of food poisoning.
A dismissal because of legal restrictions on an employee is
likely to be fair and reasonable only in the following
circumstances:
1. the law will be broken if the employee continues his or
her job
2. it is not reasonable for you to wait for the ban to expire
3. you can show that you have tried to find alternative
work but no suitable alternative is available
4. it is reasonable to dismiss the person bearing in mind
the employee's service, age and previous work record.

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Fair Dismissal
Effective Discipline
MTL Course Topics
GROSS MISCONDUCT
The majority of disciplining cases centre on the behaviour of
the employee at work rather than on their attitude or job
performance. These cases can range from minor acts of
misconduct to major acts of gross misconduct.
Dismissal for gross misconduct is likely to be fair and
reasonable in the following circumstances...
1. there is clear evidence that a rule was broken
2. the behaviour was so outrageous that trust has been
broken
3. it is widely known that such breaches would lead to
dismissal
4. you can show evidence that the rule and action to
discipline breaches are consistently applied
5. there are no mitigating circumstances
6. you have genuine grounds for believing that the
employee is guilty of gross misconduct.

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Effective Discipline
MTL Course Topics
MISCONDUCT UNBECOMING
Misconduct can occur in various forms, possibly
as a once-off incident, or a series of increasingly
worsening behaviour. These are seven of the
most frequently-met types of misconduct:
1. Dishonesty: dishonesty is any behaviour
which seeks personal and illegal gain at the
employer's expense. It includes: business fraud,
false accounting, lying and deceit, theft, clocking
offences.
2. Fighting and Violence: violence can have a
loose definition encompassing verbal violence,
such as swearing, as well as physical fighting and
mental cruelty. This category also includes:
dangerous horseplay, bullying, racial and sexual
harassment and threats.
3. Sexual Misbehaviour: sexual misbehaviour
can take place in the workplace and be
misconduct; or take place out of the workplace
and because of its indecent, immoral or illegal
aspects affect the work someone does.
4. Drink And Drugs: the use of intoxicants and
narcotics is likely to be covered in a rule book.
Where they are forbidden, any breach of rules is
likely to be even more serious if they place
people in danger.
5. Negligent Workmanship: where
workmanship is poor because of an employee's
carelessness, recklessness or negligence, it is
likely to be classed as gross misconduct. There
may be a cost to the employer in damage to
materials or property.
6. Refusal To Carry Out Instructions: blatant
refusal to carry out instructions which are
reasonable is likely to be regarded as
misconduct unless an explanation is given.
7. Abuse Of Time Off Work: when a request to
be absent from work is agreed and later turns
out to be false, there is likely to be a case for
misconduct discipline. The obvious cases are
claiming to be sick and drawing sick pay when
the employee is not ill.

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Effective Discipline
MTL Course Topics
AGGRAVATING FACTORS
When considering cases of misconduct, an employer should
take into account aggravating factors which might make the
offence much worse.
These are some of the commonest aggravating factors...
1. the seniority of the employee. Because senior figures in
an organisation set the tone and lead others, their
misconduct is more serious.
2. the position of confidence placed in the employee.
Theft of money by a Finance Director would be more
serious than pilfering by an apprentice.
3. the possible effect of misconduct on the employer's
business, reputation and customer relationships
4. the worsening of workplace relationships
5. risks to others such as their health and safety.

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Effective Discipline
MTL Course Topics
MISCONDUCT AND PROOF
Employers are often wary of dismissing an employee for
suspected gross misconduct if they do not have absolute
proof of the employee's guilt. This may arise when the full
facts are difficult to establish or, as a business, they have
neither the time or resources to conduct a full-scale
investigation as the police would do.
The case of Burchell and British Home Stores established
the principle that an employer does not need to have
absolute proof of guilt to believe an employee is guilty of
misconduct. This holds true even if a later court of law finds
the employee innocent.
What matters is that, at the time of the disciplinary hearing,
the employer has sufficient evidence to believe that the
employee is guilty. If his belief is reasonable and his
procedures carried out fairly, he can defend a decision to
dismiss.

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Effective Discipline
MTL Course Topics
OTHER REASON
While misconduct and unreasonable behaviour on the part
of the employee form the majority of cases leading to
dismissal, there are a range of other situations which might
lead an employer to dismiss an employee. These are those
due to other "substantial" reasons.
Dismissal for some other "substantial reason" is only likely
to be fair and reasonable if the employee has been warned
of the consequences of his or her behaviour. Employers
would also be expected to first take advice before acting.
Examples of this kind of dismissal are:
1. the irretrievable breakdown of the workplace
relationship
2. dismissal as a result of reorganisations which you can
show are crucial for efficiency or business survival
3. working for a competitor
4. end of fixed-term contracts
5. refusal to abide by restrictive covenants.

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Effective Discipline
MTL Course Topics
APPEALS
Employees who are dismissed for disciplinary reasons
should be told of their right of appeal and how they might
make their appeal. An appeal is usually made to the next
level of management above that of the disciplining officer,
or to a special committee.
Appeals should be based on one of the following grounds:
1. the hearing failed to follow the correct procedure
2. information on which dismissal was based was
incomplete and inaccurate
3. the decision was unfair and inconsistent with other
similar cases
4. new information has come to light which substantially
affects the case
5. any other legitimate reason.

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Effective Discipline
MTL Course Topics
A DISMISSAL CHECKLIST
A tribunal considering an unfair dismissal claim needs to
know that the decision to dismiss is contractually correct
and not a matter of personal animosity.
Some of the relevant factors to consider are...
1. the age of the employee and their length of service
2. the size and nature of the business
3. the administrative resources of the business
4. whether the guidelines of any relevant code of practice,
the employer's procedure and the golden rules of
discipline have been followed
5. the appropriateness of the decision
6. whether alternative courses were considered and if so,
why they were rejected.
You also need to be clear what the reason for the dismissal
is since the employee has the right to demand a written
statement from you within 14 days of any request.

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Effective Discipline
MTL Course Topics
THAT’S
IT!
WELL DONE!

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Fair Dismissal
Effective Discipline
MTL Course Topics
THANK YOU
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