How easy is it to fire someone with 5yrs unblemished record

[Sidewinder]

Gross Misconduct isn't strictly defined - it is an issue which is considered so severe that it destroys the mutual trust and confidence of the employee/employer relationship. There are obvious examples such as violence, theft, drugs etc, but there are also other examples which may or may not be considered serious enough to dismiss. If the employee were to take the case to a Tribunal the only issues to consider are whether the dismissal was 'reasonable' in the circumstances (any reasonable employer would have reached the same outcome) and whether the decision was made after a 'reasonable' investigation considering the size and resources of the employer. For any dismissal, either for capability or conduct, a 'fair' procedure must be followed. Even in a clear-cut case of gross misconduct, this is nothing like you would see on TV with an employee being bawled out and told they are fired. For suspected GM, even though it might be appropriate to suspend the employee (on full pay), this should be for evidence gathering purposes where necessary and the employee should be given written confirmation of the suspension and the reason for it. They should then be given a written invitation to attend a disciplinary hearing and that dismissal may be an outcome to that meeting, and they should be given the opportunity to have a colleague, Trade Union Representative or Trade Union Official accompany them to the disciplinary and to help present their case, take notes or to confer during the hearing. If representation cannot be arranged or if there are other reasonable barriers to the meeting being held then an alternative mutually acceptable date should be agreed. Following the hearing and when a decision is made the employee should be informed of the outcome in writing and given the right to appeal

 

Same procedure applies in conduct issues short of GM, but a fair warning procedure should be used. No suspension required, but written details of the complaint, an invitation to a disciplinary hearing with warning over possible outcomes, right to be accompanied and a right to appeal any final decision. If the complaint leading to the hearing is upheld, then a warning, and notification of how long this would remain on file (no longer than is 'reasonable' - the employee must not have it hanging over them forever), and that any subsequent breach might result in further action up to and including dismissal

 

For matters of capability, then possible reasons for the underperformance should be discussed at a less formal investigatory hearing so that the employer can explore ways in which to overcome any obstacles - proper or additional training, are there health or personal issues affecting performance? Is there anything the employer can do to help? There may be a disability (not necessarily physical or obvious) where the employer once aware, should make any reasonable adjustments necessary to allow the employee to work within the limits of that disability - what is 'reasonable' will vary for both parties but you should be mindful that any dismissal as a result of the disability will likely be unlawful unless any such adjustments have been considered. This may be to allow extra time to complete tasks, allowing more latitude for absence, where the absence is caused by the disability, changing workstation, or improving access to a workplace for the employee. If however there are no such issues affecting performance then the employer should set reasonable targets and timescales for improvement and dates set for progress reviews. If underperformance continues then there can be a move to a warning process whereby dismissal could result if sufficient progress is not made. Again, keep everything confirmed in writing and allow the legal rights for accompaniment and appeal

 

These procedures apply to all employees and must be applied fairly and evenhandedly - irrespective of gender, race, religion etc. Dismissal following a fair procedure will not be a problem irrespective of race, religion, disability. Your suggestion that you have to treat one employee differently due to a protected characteristic is not true, providing that you have used a fair procedure and have made allowances for any protected characteristic. It is a myth that you cannot dismiss for long term sickness, or cannot dismiss a disabled employee, but you must follow fair procedures. These rights apply to all employees irrespective of service, but should the employee have less than two years service, you have a certain protection against a claim for Unfair Dismissal unless the dismissal was due to a protected characteristic

 

Not at all sure that I would agree with the way that you worded your OP?

 

"I'm trying not to personalize this too much, so would appreciate any advice in a general sense. Is there legislation that states there must be, for example, a verbal warning first, followed by 2 written warnings, then 'boom!' sack time. Or can a boss just fire you because she doesn't like your face - (providing of course that 'face' doesn't look pregnant, black, gay, transgender, etc, or any other protected characteristic - just a regular 'unprotected' straight white middle-aged male!)"

 

As said previously, policies and disciplinary procedures must be evenly applied. You 'could' dismiss because you don't like the employee's face/tie/aftershave, but it wouldn't be lawful unless that employee was actually doing anything wrong (although if employed for less than two years they could do little to take the case to a Tribunal unless they allege that the dismissal was for a protected characteristic), so you should look at attitude, workplace harmony, negative impression of customers etc rather than personality itself and use a warning process

 

Of course any employer, of any size should have adequate disciplinary rules in place and available to staff otherwise it becomes very difficult to allege that rules or expectations have been breached when staff are unaware of what the rules are or what could result from breaking them, so if you do not have these in place then you could find things very difficult - dismissal for punching a colleague will almost certainly be reasonable in most circumstances, but for lesser misdemeanours, employees must know what is acceptable and not have to guess and be ambushed at a disciplinary. You must also apply the same disciplinary sanctions to all employees - allowing one to remain with a warning but dismissing another for the same offence could easily be construed as unfair. Hopefully you do have such procedures published and employees are aware of them?

 

I have probably missed something out of the above, or have applied the procedures incorrectly - Emmzi or Sangie are much better qualified than I - but hopefully the above helps. The ACAS Code is not law as such, but is used as a measure by Tribunals and failure to apply the Code could, in the event of a successful claim, be used to increase any awards made. Equally, following the Code and being able to demonstrate fair process and reasonable sanctions made will protect you from false or spurious claims