Unlawful dismissal?

toniskinner

Hi,

As an employer I have recently had to dismiss one of my employees. Though I followed the ACAS disciplinary procedures correctly, I have not (at any point) informed the employee that he is entitled to someone to accompany them at the disciplinary hearing. After researching (alot) I can only find reference to the statutory right to ALLOW tthis but no legal requirement of the employer to INFORM this. Can someone please clarify if I am within my rights to dismiss him 'lawfully'. At no point did i REFUSE to allow him someone to accompany him.

The ACAS website etc states 'the employer SHOULD inform the employee of a right to accompaniment....' In this case does the term 'should' refer to legal requirement or purely 'good business practise'.

Responses would be greatfully receieved.

Many thanks

pelirocco

I think you will find that should , means must . We employ a company to advise us when it comes to such matters , and they always stress that the employee has the right to be accompanied . With employment regulations as they are you have to cover all bases

SarEl

toniskinner wrote: »

Hi,

As an employer I have recently had to dismiss one of my employees. Though I followed the ACAS disciplinary procedures correctly, I have not (at any point) informed the employee that he is entitled to someone to accompany them at the disciplinary hearing. After researching (alot) I can only find reference to the statutory right to ALLOW tthis but no legal requirement of the employer to INFORM this. Can someone please clarify if I am within my rights to dismiss him 'lawfully'. At no point did i REFUSE to allow him someone to accompany him.

The ACAS website etc states 'the employer SHOULD inform the employee of a right to accompaniment....' In this case does the term 'should' refer to legal requirement or purely 'good business practise'.

Responses would be greatfully receieved.

Many thanks

I don't normally give employers advice, but I will make an exception because your employee might be reading this (or it might benefit some other employee). The ACAS guidance isn't guidance! It is the minimum acceptable standard accepted by a tribunal and breach of the guidance is unfair process. Unfair process often leads to a finding of unfair dismissal. For the puposes of employment law, you must inform an employee of their right to be accompanied, and it's a breach that is often not well regarded by tribunals.

That does not mean that your dismissal of the employee was fair or unfair - the law doesn't work like that. But you have made a serious error.

toniskinner

SarEl wrote: »

I don't normally give employers advice, but I will make an exception because your employee might be reading this (or it might benefit some other employee).

Many thanks for this response. I'm intrigued as to why you don't normally give employers advice? Do you mind if I ask why....?

In regards to the dismissal, I understand the error made - is one able to suggest a 'retrospective' disciplinary with an accompaniment or is there little point in doing this?

celinepatricia

When my husband was dismissed he got the letter on the Friday to attend the meeting on the Monday. It was arranged by management for the union rep to attend. Should they not have asked my husband who he actually wanted at the meeting as the union rep was about as much use as a chocolate fireguard..

pelirocco

toniskinner wrote: »

Many thanks for this response. I'm intrigued as to why you don't normally give employers advice? Do you mind if I ask why....?

In regards to the dismissal, I understand the error made - is one able to suggest a 'retrospective' disciplinary with an accompaniment or is there little point in doing this?

I was wondering the same thing ? Employers arent all big bad ogres you know , we also need to be protected from employees who in one way or another are causing damage to our companies ( and there by risking others jobs )

toniskinner

celinepatricia wrote: »

When my husband was dismissed he got the letter on the Friday to attend the meeting on the Monday. It was arranged by management for the union rep to attend. Should they not have asked my husband who he actually wanted at the meeting as the union rep was about as much use as a chocolate fireguard..

Yes, from what I understand the employee has the right to choose who should attend the hearing as his accompaniment. However, there are strict rules in place (see the ACAS website) as to what involvement this person is allowed to have in proceedings. The company, I beleive, can stipulate in the contract if they wish to extend the rules of 'who' to include spouses, freinds, family etc , but standardly it is only allowed to be a work colleague or a trade union representative (of the employees choosing)

It is such a minefield though, in my opinion, for both employee and employer. Expecting both to understand and exercise their rights in these situations means searching for information which does not appear to exist (IMO)

pelirocco

celinepatricia wrote: »

When my husband was dismissed he got the letter on the Friday to attend the meeting on the Monday. It was arranged by management for the union rep to attend. Should they not have asked my husband who he actually wanted at the meeting as the union rep was about as much use as a chocolate fireguard..

Tbh the person attending isnt allowed to say anything in the meeting anyway

SarEl

pelirocco wrote: »

Tbh the person attending isnt allowed to say anything in the meeting anyway

Incoorect. The law specifically stupilates that they have the right to speak and to ask questions.

Googlewhacker

pelirocco wrote: »

Tbh the person attending isnt allowed to say anything in the meeting anyway

Not quite true, they can make an opening statement and then confir with the employee throughout but other than that they are there to take notes and observe.

Googlewhacker

What can your companion do at the hearing?

Again, the law is clear on this. The companion may make an opening address on your behalf at the beginning of the hearing. After that they cannot address the hearing again unless your employer agrees. However you may confer at any time, and they can take detailed notes of the hearing which will be very useful if your case ever goes to appeal or ends up in an Employment Tribunal or other court.


Taken from the TUC website.

Is that not correct then?