If an employer has conclusive evidence of an employee’s gross misconduct, can they dismiss immediately?
On occasion an employer will find itself with evidence which catches an employee red handed.
This could be CCTV footage showing an employee in the act of committing some form of wrongdoing or third party evidence clearly showing that an employee had been untruthful.
Commonly, the natural inclination here is to go straight to a disciplinary hearing and skip the investigation stage or even just to impose a sanction on the grounds of the evidence alone.
Whilst an employer might get away with this if the employee has under two years’ service (though it’s best to follow a process to mitigate against all potential claims), such a move could cause legal issues if an employee with over two years’ service was involved.
This is because tribunals have noted themselves that it would be difficult to ever justify removing the investigation stage – even where there is clear evidence at hand. It would likely never be justified to skip straight to a sanction without the employee ever having a chance to put their side of events forward. Obviously the more damning the evidence is, the less that will need to be done in terms of an investigation (especially if the employee admits the allegations). This doesn’t in and of itself remove the need for such a process, however.
It’s important to bear in mind that a tribunal assesses the fairness of a dismissal on two fronts: whether the dismissal is substantively fair (i.e. whether it was fair to dismiss for the reasons given), and whether the dismissal was procedurally fair. Cutting corners on the basis of catching the employee red handed could render a dismissal procedurally unfair, irrespective of the fact that there were clear substantive reasons.
Whilst the fact that a dismissal would clearly have happened in any event will limit the value of any claim significantly, employers still need to bear in mind the legal costs incurred to deal with such a claim, as well as the time, stress and attention that comes with it.
So, in short, employers should contain any urge to ditch process just because they have slam-dunk evidence. This will be very difficult to justify should the employee challenge the dismissal in a tribunal.
Author: Jonothan Scollen, Employment Law Solicitor at Howarths
If you would like to discuss any aspect of this article, including how we can help assist you in managing a disciplinary process, then please contact the Employment Team on 01274 864999.