Legal advice from the NGCAA: Misconduct dismissal

When dealing with employees, there are five potentially fair reasons for dismissal, which are set out within the Employment Rights Act 1996. In order to dismiss fairly, the employer must establish that one of those potentially fair reasons applies and then, having established that fair reason, they must act reasonably when dismissing for that reason which includes, very importantly, following a fair procedure.

There might be some circumstances where an employer might not follow a full procedure, such as when the employee does not have two or more years of continuous service, but we would always recommend that a club takes legal advice if considering such an approach. This article works on the basis of the employee having more than two years of continuous service and we focus here on the potentially fair reason of misconduct and its associated procedure.

1. Types of misconduct

Misconduct is a potentially fair reason for dismissing an employee.

It is good practice to have workplace disciplinary rules which identify unacceptable conduct, the degree of severity with which it is regarded, and how acts of misconduct will be dealt with.

Misconduct may be categorised as ‘misconduct’ or ‘gross misconduct’. Gross misconduct is the most serious type of misconduct, such as theft or violence, warranting instant dismissal, the occurrence of which means the club should no longer be required to retain the employee in his or her employment. An employer may dismiss fairly for gross misconduct without prior warnings and without notice. The disciplinary procedure should still be followed, with hearings conducted and evidence gathered, as set out below.

Where there is less serious misconduct an employee must receive at least one relevant warning prior to dismissal. In the absence of gross misconduct the dismissal of an employee for a first offence is likely to be unfair. In the absence of gross misconduct, employees will be entitled to proper notice of dismissal with pay.

2. Fairness of dismissal

For a club to fairly dismiss on the grounds of misconduct, the identified misconduct must be the real reason for dismissal and the club must:

• At the time of dismissal, genuinely believe the employee to be guilty of misconduct and have reasonable grounds for believing that the employee was guilty of the identified misconduct;
• At the time that the employer formed that belief on those grounds, it had carried out as much investigation as was reasonable in the circumstances;
• Have acted reasonably in dismissing for that reason, which includes considering all relevant circumstances (such as background, employee history and record) and whether there are other options to dismissal; and
• Have followed a fair procedure which includes following the ACAS Code of Practice on Disciplinary Procedures (ACAS Code).

It is fundamental in misconduct cases, that no decision is made in relation to whether the employee is dismissed until all investigations have been completed and the employee has had a chance to state his case. The decision must not therefore be pre-judged.

3. Procedure

According to the ACAS Code, before dismissing for misconduct, an employer should complete the following procedural steps:

(1) investigate the issues;

(2) inform the employee of the issues in writing so that they know the case against them and that they are at risk of dismissal;

(3) invite the employee to a disciplinary hearing or meeting, allowing the employee the right to be accompanied;

(4) conduct a disciplinary hearing or meeting with the employee, allowing the employee to make representations;

(5) inform the employee of the decision in writing;

(6) give the employee a right of appeal; and

(7) act in accordance with any internal disciplinary procedure.

For the purposes of the above procedure, some preparatory steps are therefore advisable as follows:

• Check the requirements of the club’s disciplinary policy.
• Choose an appropriate investigator.
• Appoint different people at each stage (that is, the investigation, disciplinary meeting and appeal meeting) in ascending seniority (so as to have authority to overturn the decision is necessary).
• Keep to timescales in disciplinary policies. Avoid, if possible, using as an investigator or chairperson for the disciplinary or appeal meeting a person who has significant planned absences where this might cause delay to the investigation.
• Have regard to the interplay with any related processes (for example, any related grievance process).

A reasonable investigation is a key part of the test of fairness in misconduct dismissals. Where a reasonable investigation has not been carried out, employees may be able to argue that their dismissal was unfair on the basis that the charge against them was not framed accurately and they did not know the case they had to meet, or the employer did not have reasonable grounds for a belief in their guilt. This will render an otherwise fair dismissal unfair. Care should therefore be taken to ensure all matters, particularly those put forward by the employee (even at a late stage), are investigated. This is likely to include interviewing the employee at an early stage, any relevant witnesses and gathering relevant documents / information.

4. Dismissal as sanction

Dismissal must be a reasonable sanction to impose. Even where the club has carried out a reasonable investigation and followed a fair procedure, it must still persuade an employment tribunal that dismissal was a reasonable sanction in all the circumstances. The employment tribunal will ask whether the employer acted within the band of reasonable responses in treating the misconduct as a sufficient reason to dismiss.

The following circumstances may be relevant when deciding whether to dismiss:

• The relevant background to the offence, including previous warnings or similar incidents (see below);
• The employee’s length of service;
• The employee’s prior disciplinary record;
• Whether the employee admitted the offence and showed remorse; and
• Whether the employee was provoked or acted under stress.

The club should act consistently when deciding to dismiss with similar conduct being dealt with in a similar way. The club should therefore consider the sanction that has been imposed on other employees in similar circumstances and act consistently with previous decisions. Any difference in treatment will need to be justified, for example on the basis of mitigating circumstances. Clear workplace rules and training can help managers to reach consistent decisions.

Employers should be mindful of their duty to consider all the circumstances and other options to dismissal (such as final warning or demotion, where the contract allows for this), as an employment tribunal can still find that dismissal was outside the band of reasonable responses, even where there has been a finding of gross misconduct.

For more detail on employment law matters, or any other legal matter affecting your golf club, please contact Alistair Smith at the NGCAA on 01886 812 943 or office@ngcaa.co.uk