FAQs: Fair dismissals and serving notice of termination of employment
Q. HOW DO I MAKE SURE A DISMISSAL IS FAIR?
A. For a disciplinary (conduct) related dismissal, follow your local policy & procedure, and make sure your procedure itself complies with the ACAS Code of Practice.
Seek advice from HR at every step of the process, from initial allegations all the way to the deliberations of the decision maker/panel immediately following a hearing AND seek HR assistance in drafting all and any communication to the employee (and their representative) throughout.
For all other dismissals (capability, attendance, probation, redundancy, cessation of a fixed term contract, another substantial reason etc.), make sure you follow you follow your local policy & procedure and ensure that the employee has the opportunity to a FAIR TRIAL before the decision to dismiss is reached, and that they have the right of appeal against the decision.
A fair trial means:
|Establish the facts||Make sure there is something to be investigated! It sounds obvious but “hearsay” allegations or allegations that someone is not prepared to back up in writing or as a witness can leave you high and dry. Check core evidence – was the person in work on that day for example! Is there anything missing and what is the evidence for this? Should you be talking to the LADO? Is suspension in scope? |
Then assign your investigator and initiate the formal process of investigation.
|Seek the input of the employee||Ensure the employee has an opportunity to input at the fact gathering stage (if a disciplinary this would usually be the investigation meeting)|
|Conduct a meeting that meets the threshold of a "fair trial"||Make sure the employee is sent a copy of the documentation (or evidence for a disciplinary), on which you as the school or trust will rely in reaching your decision, before the meeting, usually as an enclosure to the letter of invitation to the meeting.|
Provide the employee with the opportunity to attend the meeting to put forward their view (or to be represented at the same or to submit their view in writing) and give them the right to be accompanied at such a meeting by a trades union representative or work colleague.
|Offer an alternative date is requested||If the date of the hearing is not acceptable to the employee (and or their representative) make sure you offer a reasonable alternative date (e.g. different week).|
|Provide the right to appeal||The employee has the right to appeal against the decision. Do not be tempted to try and find reasons to refuse an appeal, in essence an appeal is either a technical one (a very specific appeal abut a specific technical, procedural and or legal point) or a re-hearing (a chance to be heard a 2nd time).|
We strongly recommend that you train and or brief your pool of decision makers (usually members of the Senior Leadership Team and Governors) in the concepts of:
- “A fair trial and the threshold of proof for employment matters”
- “A reasonable decision by a reasonable employer”.
- “Considering mitigating factors”.
- “Considering aggravating factors”.
- “Taking account of an employee’s employment record”
Want to attend, to book, or to book a group into one of these training events for Senior leadership team members and members of governing bodies? Call 0330 123 2542 or EMAIL HR@strictlyeducation.co.uk
Q. WHEN IS NOTICE OF TERMINATION SERVED?
A. The table below summarises serving of notice:
|With Notice||Without Notice|
|From EmployER to employee||From employer to employee: it takes effect the DAY AFTER notice is served regardless of whether it is served orally or in writing; if it has been served orally it will be important to refer to that in the confirmation in writing to avoid confusion.||Summary Dismissal from employer to employee: it takes effect the moment notice is served regardless of whether it is served orally or in writing; if it has been served orally it will be important to refer to that in the confirmation in writing to avoid confusion.|
|From EmployEE to employer||From employee to employer: it takes effect the DAY the notice is RECEIVED (not read) by the employer regardless of whether it is received verbally or in writing.||Constructive dismissal/instant resignation from employee to employer: it takes effect the same DAY the notice is RECEIVED (not read) by the employer regardless of whether that is orally or in writing.|