18 Sep 2020
Sometimes employee conduct crosses the line and you’ll want them out of the workplace right away.
In these cases, you’ll need to consider summary dismissal. But what is it, and what is the correct process?
What is summary dismissal?
The summary dismissal definition outlined by the government is when an employer dismisses someone instantly, without notice or pay in liu of notice (PILON.) This is normally due to gross misconduct. This definition highlights the most important elements.
Does this mean I can dismiss the employee immediately?
TV shows or movies may inspire you to fire someone on the spot, but this is rarely how it works. You still need to follow a fair procedure when issuing a summary dismissal, meaning you can’t tell someone they’re dismissed and hope they go away.
This means the employee won’t leave your business instantly… so what does it mean?
What does summary dismissal mean?
As highlighted by the government outline, the things that define summary dismissals are gross misconduct, being dismissed without notice and PILON.
However, as with all cases of gross misconduct, you need to conduct an investigation as part of a fair disciplinary procedure. This can take some time. Dismissing the employee prior to an investigation is likely to result in a claim of unfair dismissal.
If you’re worried the employee’s presence in the workplace will disrupt or impede the investigation, you might be able to suspend them until the disciplinary procedure is completed.
However, a suspension should never be a punishment. You should make this clear to the employee if you choose to suspend them.
But what are the grounds for this? There are a few. Some summary dismissal examples include:
- Theft or fraud
- Damage to company property
- Setup of a competing business
- Serious workplace health & safety breaches
- Possessing/Using illegal substances at work
- Discrimination against colleagues
- Harassment of colleagues
It’s important to note this list isn’t exhaustive.
There are many summary dismissal cases you can draw on in employment law. But one pertinent case is that of Mbubaegbu v Homerton University Hospital NHS Foundation Trust. The reason? This case highlighted that a series of acts of misconduct can constitute as gross misconduct. However, we’d always advise caution before dismissing an employee for this reason.
The difference between dismissal and summary dismissal
The fundamental difference between a regular dismissal and a summary dismissal is the lack of notice periods.
Also, you can only perform a summary dismissal in response to gross misconduct. In all other aspects, they’re the same.
In particular, you always need to follow a fair procedure, regardless of the reason.
Summary dismissal procedure
The framework of your dismissal procedure leading up to a dismissal should look something like this:
- Make clear that you’re intending to suspend the employee
- Begin an investigation into the allegations
- Ask witnesses about the incident/behaviour
- Invite the employee to a disciplinary hearing
- Hold the hearing
- Decide the outcome
- Inform the employee of your decision and their right to appeal
The summary dismissal procedure in the UK can involve suspension, though we usually advise against the suspension.
You should keep the suspended employee on full pay unless their contract states you don’t have to, so you don’t risk a breach of contract.
Summary dismissal & holiday pay
If you summarily dismiss an employee, the law entitles them to their pay to the date of the dismissal.
This includes any statutory holiday entitlement they’ve accrued but not taken. If the contract states otherwise, you can only withhold pay in holiday pay that exceeds the statutory minimum (5.6 weeks).
Summary dismissal letter
The letter should include all the relevant information and justify the summary dismissal. You need to inform them of their final day of employment and remind them of their right to appeal.
The best way to ensure you get your letter correct is to use an existing summary dismissal letter template. To get documentation templates AND expert HR support, contact Croner today on 0145 585 8132.
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