Dismissing an employee without notice, or payment in lieu of notice, requires employers to proceed with caution, not least to minimise the risk of a claim for unfair or wrongful dismissal.
The following guide examines the law relating to summary dismissal, with practical advice on the procedures you will need to follow for the dismissal to be fair and lawful.
What is summary dismissal?
Ordinarily, when dismissing an employee, as a minimum requirement you would usually provide the employee with one week’s notice where they have been employed by you continuously for one month or more but for less than 2 years.
For employees that have been employed by you for at least 2 years, you will be required to provide them with 2 weeks notice, with one additional week for each further complete year of continuous employment, up to a maximum of 12 weeks.
Where the contract of employment makes provision for a longer period of notice, the employee will be entitled to this enhanced contractual right.
In contrast to an ordinary dismissal where an employee will be entitled to either a statutory or contractual period of notice, summary dismissal is where you dismiss an employee without notice, or pay in lieu of notice.
Summary dismissal does not equate to instant dismissal or dismissal ‘on the spot’, as you will need to ensure you have followed a fair process and established lawful grounds for dismissal before taking the decision to dismiss without notice.
When is summary dismissal fair?
Notwithstanding an employee’s basic entitlement to a minimum notice period on termination of their employment contract, there are occasions where the decision to dismiss with immediate effect, without pay or pay in lieu of notice, will be an appropriate course of action for an employer to take.
In particular, summary dismissal will be construed as fair in circumstances of gross misconduct, which is misconduct that is so serious that it has irreparably damaged or destroyed the working relationship between the parties.
Where an employee is guilty of an act of gross misconduct, this can be treated by the employer as a fundamental breach of the implied duty of mutual trust and confidence, such that this will warrant bringing the contract to an end without meeting any minimum statutory or contractual notice requirements.
Common examples of gross misconduct could include any of the following, although this list is by no means exhaustive:
- Physical violence or threats of violence
- Intoxication in the workplace
- Indecent behaviour in the workplace
- Sexist or racist abuse in the workplace
- Theft or fraud from the employer
- Misuse of company property
- Serious insubordination in the workplace
- Serious breaches of health and safety at work
- Deliberate disclosure of sensitive or confidential data to a third party.
However, what constitutes gross misconduct will depend on the context of the conduct or act. Your workplace might even have its own policy or rules, with specific prohibitions against certain types of misconduct based around your particular business or organisation.
It is also important to bear in mind that even if an employee is guilty of an act of gross misconduct, there may be circumstances that significantly mitigate the gravity of the matter, such that this may not amount to misconduct so serious so as to justify summary dismissal for a first offence. These mitigations would usually be put forward by the employee as part of the disciplinary procedure and should be considered by the employer accordingly.
Depending on the facts of the case, summary dismissal may not always be an appropriate response to workplace misconduct, where you may need to consider either providing notice or pay in lieu of notice, or even suitable alternatives to dismissal, such as a written warning, demotion or redeployment.
Grounds for summary dismissal
By law an employee has a right not to be unfairly dismissed. As such, you must have a genuine and valid reason to fairly dismiss an employee, otherwise run the risk of facing an unfair dismissal claim before an employment tribunal.
As set out above, a fair reason justifying summary dismissal will typically include a serious misconduct issue, although this does not necessarily need to be a one-off incident of gross misconduct, rather the cumulative effect of several acts of misconduct may sometimes suffice.
In Mbubaegbu v Homerton University Hospital NHS Foundation Trust [2018], the Employment Appeal Tribunal found that the summary dismissal of a consultant orthopaedic surgeon for a series of acts of misconduct was fair, even though no single act amounted to gross misconduct and he had unblemished disciplinary record of over 15 years.
In particular, regardless of the absence of any prior warning, or that the Trust could not point to a particular act that amounted to gross misconduct, these factors did not alleviate the seriousness of a pattern of conduct that raised concerns about patient safety. As such, the misconduct was sufficiently serious to undermine the relationship of trust and confidence.
The EAT summarised this issue in the following way:
“Whether or not the label of gross misconduct is applied to such conduct is not determinative. It is quite possible for a series of acts demonstrating a pattern of conduct to be of sufficient seriousness to undermine the relationship of trust and confidence between employer and employee.”
It is also important to note that an employee will only usually be eligible to claim unfair dismissal if they have worked for you for a qualifying period of no less than two years, although there is no corresponding qualifying period of service needed to bring a claim for wrongful dismissal.
A wrongful dismissal claim refers to the right of an employee to seek damages for any failure by an employer to pay the minimum statutory or contractual notice period. As such, you must still be able to prove a fundamental breach of contract by reason of either a single act of gross misconduct, or a sufficiently serious pattern of misconduct, justifying summary dismissal.
Summary dismissal procedure
Regardless of the seriousness of the misconduct, you will still be required to follow a fair procedure, as you would with any other disciplinary matter, before a decision can be made on which disciplinary action is to be taken.
This is essential to avoid claims for unfair dismissal, which requires an employer not only to have a fair and lawful reason for the dismissal, but also to have acted reasonably in all the circumstances.
As such, summary dismissal is not actually an instant decision, but rather requires a thorough investigation and full disciplinary hearing. In particular, you must provide the employee with the opportunity to defend the allegations made against them before deciding to dismiss, either with or without notice.
In many cases, employers will already have in place some form of written disciplinary procedure, setting out the steps they must follow in dealing with improper or unacceptable behaviour within the workplace. That said, as an absolute minimum, any procedure must comply with the ACAS Code of Practice that sets out the basic requirements of fairness applicable in most cases.
In particular, when dealing with an act of gross misconduct, or even a series of acts of misconduct, you should:
- Conduct a full and fair investigation, without unreasonable delay, to establish the facts of the matter, including any mitigating circumstances. This should involve taking statements from any witnesses, including the employee, as well as reviewing any documentary or other evidence.
- Only suspend an employee pending the outcome of the investigation and disciplinary process where it is absolutely necessary and there are no alternatives. You must also suspend on full pay, unless their employment contract provides otherwise, and notify the employee of your decision in writing, in particular explaining that this is not a disciplinary sanction.
- In the event that the investigation shows that there is a case to answer, invite the employee to a disciplinary hearing as soon as possible. The employee must again be informed in writing of the basis upon which they are being subject to disciplinary proceedings and provided with sufficient evidence in advance of the hearing to allow them to prepare their case. The employee must also be notified of their right, to be exercised on reasonable request, to be accompanied to that hearing.
- Hold the disciplinary hearing, explaining the basis of the complaint and presenting any evidence, whilst giving the employee, or the employee’s companion on their behalf, the chance to present his or her case.
- Make a decision as to whether or not summary dismissal is a reasonable response to any findings of misconduct, or gross misconduct, having regard to decisions made in any previous similar cases.
- Notify the employee in writing of any decision to dismiss, setting out your reasons and explaining that this will have immediate effect. You must also inform the employee of their right to appeal, again including their right to be accompanied at an appeal hearing. The employee can appeal either on the basis that s/he feels that the outcome is wrong or unjust, that the disciplinary procedure was unfair, or they have new evidence to present.
- Retain an accurate written record of the entire disciplinary process, including the reasoning behind any decision-making. In this way you will have a written account of what has taken place in the event of any clam for unfair or wrongful dismissal.
What should a summary dismissal letter contain?
In the event that the decision is taken to summarily dismiss an employee, the employee must be notified in writing of the reasons for their dismissal and the effective date of termination of their employment contract.
However, the dismissal letter is also your opportunity to demonstrate, and document, a fair reason for deciding to dismiss without notice, as well as the fair process you have followed in reaching that decision.
In particular, a summary dismissal letter should contain the following:
- The decision to summarily dismiss, together with an explanation that this is to take immediate effect, without notice or pay in lieu of notice
- The nature of the serious misconduct upon which the dismissal is based
- The manner in which the serious misconduct was investigated and the findings made following the investigation and disciplinary hearing
- Why dismissal was considered the only acceptable course of action, in other words, that the misconduct has irreparably damaged the relationship of trust and confidence between you and the employee
- Confirming the last date of their employment with you, as well as dealing with any practicalities, such as the return of company property
- Reminding the employee that they are still be bound by any post-termination confidentiality obligations and restrictive covenants as set out under their contract of employment
- Setting out the employee’s right to appeal this decision, including how to appeal, to whom and by what date.
Dealing with misconduct in the workplace
As an employer, it is important to have clear written disciplinary procedures in place as a way of both preventing and fairly handling misconduct in the workplace. In particular, any written procedures should clearly set out what types of behaviour might lead to disciplinary action, including what constitutes misconduct and gross misconduct, and warning of the risk of summary dismissal.
This procedure should also be easily accessible to all members of staff, either within their contracts of employment, or contained within a staff handbook or on any staff intranet site. That said, acts of serious misconduct within the workplace are usually difficult to pre-empt or manage, not least because these are often one-off incidents that take place without warning or in the heat of the moment.
Nonetheless, this does not necessarily make the misconduct any less serious, such that the employee should be excused of unacceptable behaviour, not least where this has had a detrimental effect on other employees or your business.
However, given that you should not dismiss an employee without first conducting a proper investigation and fair disciplinary process, it is always advisable to seek expert legal advice at the earliest possible opportunity.
In this way, you can explore the merits of any potentially fair and lawful dismissal based on the facts of the case, ensuring that you follow the right procedures before notifying the employee of your final decision. In particular, it is important to bear in mind that whilst a dismissal with the appropriate notice will be a contractually lawful dismissal, it may still be unfair.
Need assistance?
DavidsonMorris’ employment law experts work with employers to provide advice and guidance through challenging workplace situations such as gross misconduct cases and summary dismissals. Even where the employer believes there is no doubt that the employee should be dismissed, they must be able to show they have followed a fair disciplinary process in arriving at the decision to dismiss without notice and without PILON.
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