Summary dismissal: Everything an employer needs to know
You’ll often hear summary dismissal in the same breath as gross misconduct. This is because one leads, unfortunately, to the other: gross misconduct often results in summary dismissal – or ‘instant dismissal’.
Here’s hoping you never have to go through a summary dismissal, either as an employee or employer. But it doesn’t hurt to be prepared.
So, without further ado, here’s a guide on how to make this sticky disciplinary procedure fair.
What does summary dismissal mean?
In ordinary life 'summary' means that thing you might read on the back of a DVD (old school!) – a brief outline of a plot. But ‘summary’ is also a legal term, with a specific legal meaning. It means ‘instant’. In the context of dismissal, ‘summary dismissal’ means dismissal with no notice – and with no pay in lieu of notice either. Instant dismissal.
Why don't we say "fired" anymore?
"Fired" is the informal word for being dismissed. As there are actually many forms of dismissal, from constructive to wrongful, to summary: it’s best to use the formal term for clear communication throughout the process.
What are the grounds for summary dismissal?
Gross misconduct can leave employers with no choice but to dismiss someone without notice. It is defined by anything that undermines the trust between employee and employer, to such a degree that they can no longer work together. If you're unsure what might constitute such a breach in trust, here are some common summary dismissal examples:
• Fraud – such as fraudulent expense claims
• Insubordination – refusing to obey orders
• Physical violence
• Harassment and bullying
• Accepting bribes
• Gross negligence
• Illegal activity
• Alcoholic intoxication, or drug use
What doesn’t necessarily count as gross misconduct?
Depending on your company policy, or the type of business you run, some other actions might or might not give grounds for summary dismissal: for example, downloading dangerous software, or viewing inappropriate material on your company computer. You should have examples of what your company considers gross misconduct in your disciplinary rules, as well as your company’s disciplinary procedures.
Can you use summary dismissal in a case that isn’t gross misconduct?
No, by definition, a summary dismissal can only come about if there is an immediate need to remove an employee from the company (for the above, serious reasons). Otherwise, you must give your employee their proper notice. You can’t go around firing people for no reason – UK employment law protects employees from bosses with these sorts of dangerous whims.
It’s important that you proceed carefully and legally with summary dismissal. Otherwise, you could be brought to an employee tribunal, or even court, and fined for unfair dismissal. Legal advice forums are a goldmine for stories of summary dismissal from disgruntled colleagues. Many of them have cases for unfair dismissal, due to summary dismissal not being used in the correct circumstances (e.g. a retail worker being instantly dismissed for missing a single shift). With these tales of woe in your mind, proceed with caution to make sure you’re doing everything by the book.
What is a fair dismissal?
No matter the action of the employee, you, the employer, must act diplomatically and professionally throughout the dismissal process for the dismissal to be considered fair. The government website refers to this as "acting reasonably". Even in a case of gross misconduct, the employee should be given a chance to respond to your accusations before a summary dismissal.
You must follow a clear process between gross misconduct and summary dismissal: making sure you notify your employee of their suspension, their hearing, and, most importantly, their right to appeal, in the clearest way possible.
Notifying your employee
If your employee is on a contract and has served under two years at your company, then they can be asked to leave without further notice, or payment in lieu of notice if you, their employer, have grounds for summary dismissal. The same is true if your employee is in their probation period. Slightly different rights apply if you have casual workers.
If your employee is on a contract and has served over two years at your business then they are safeguarded from being fired on the spot. Instead, what should happen is that your employee should be told that they are being investigated for their actions.
You, the employer, have a right suspend your employee whilst this investigation is underway in order to conduct it fairly – but only if the employee is an immediate risk to your business, or to those around them. An employee who is violent can be asked to leave the premises immediately. An employee who installed a violent piece of computer software can stay at work until their disciplinary hearing.
The important thing is to make sure that the employee knows exactly what is going on – the date of their disciplinary, whether they are suspended from work, the reasons for your decisions, and their rights.
Proving gross misconduct
You do not need to prove an employee is guilty with the thoroughness of a courthouse – but you must have ‘genuine belief’ that they have acted inappropriately. Furthermore, you must have conducted a reasonable investigation into the grounds for dismissal, and gathered sufficient evidence to back them up. Written records, accounts from other workers or witnesses, plus supporting evidence, such as documentation of past misconduct, can all be used at the hearing.
HR and the employee’s manager should get together to arrange all the necessary information prior to the disciplinary hearing. This isn't something that you want to rush.
The disciplinary hearing
At the hearing you will present your evidence, and the employee will be given a chance to defend themselves. Let your employee bring a colleague or companion along as a witness and for emotional support.
Your employee might admit to the charges brought against them, but this won’t necessarily mean that they will keep their job.
Dismissing an employee
To make sure you conduct the summary dismissal process fairly, you should follow the Acas statuatory code of conduct. Acas, or The Advisory, Conciliation and Arbitration Service is a public body that deals with all aspects of working life. It has clear steps on dismissal, which you must follow.
Writing a summary dismissal letter
For summary dismissal, bear in mind that:
1) Only a manager with the right authority can dismiss an employee.
2) The employee must be informed as soon as possible of their dismissal with a dismissal letter.
3) The dismissal letter must contain:
a. The reason for dismissal
b. The legal basis for gross misconduct – plus a record of any prior warnings your employee has received
c. The date and outcome of their dismissal hearing
d. Their termination date, with the stipulation that they are ineligible for notice or pay
e. Final salary payment, plus details about returning company property (cars, laptops, staplers)
f. And finally, and importantly: their right of appeal.
What happens if I don’t follow the Acas code?
Say you don’t follow the code: this in itself isn’t grounds for penalties, but it may be used as evidence against you in any subsequent tribunal. Failure to comply with the code can increase compensation payments to your employee. This means that if the tribunal decides to compensate an employee, they can award them up to 25% on top of their payment if there’s evidence your company hasn’t followed the proper code. In short: follow the code for every dismissal: summary or otherwise.
In general, in any instance of misconduct that could lead to dismissal:
1) Try to solve problems informally, before they escalate: using a mediator if necessary.
2) For misconduct that is below gross misconduct, written warnings must be given before the decision to terminate employment.
3) Keep a written record of all grievance procedures. If an employee goes on to be fired for gross misconduct, their previous record can be used as supporting evidence – but only if it was recorded at the time.
Costs involved in a summary dismissal
If an employee appeals against summary dismissal at an employment tribunal and is found to have been unfairly or wrongfully dismissed, then they may be awarded up to £25,000 – a sum which will come out of your business. This amount can be even higher if their case is heard in court, which has no upper limit for compensation.
If the Acas code has whet your appetite, you can also order their booklet, ‘Discipline and grievances at work: the Acas guide’ which delves into these meaty issues in more detail.