370 Chapter 13Employment (1): The contract of employment, employment rights and dismissal
right to answer questions on the employee’s behalf. However, the companion would
have the right to address the meeting in order to put and sum up the employee’s case, to
respond on the employee’s behalf to any views expressed at the meeting and to confer
with the employee during the meeting.
n The employer must decide upon appropriate action and inform the employee of this
decision in writing. As regards most cases of misconduct or unsatisfactory performance,
a first written warning would be the usual action taken, with the threat of a final written
warning if there was further misconduct or a failure to improve performance. If the
misconduct or unsatisfactory performance is sufficiently serious, a final written warning
might be appropriate. A written warning should set out the employee’s poor perform-
ance or misconduct, the change in behaviour or improvement required and the timescale
for this. The employee should also be told for how long the warning remains in force
and what the consequences of further misconduct or failure to improve might be. Even
if there is gross misconduct which would justify dismissal without a warning, the dis-
ciplinary process should always be followed. Disciplinary rules should set out examples
of gross misconduct. If the employee is persistently unwilling or unable to attend a
meeting, without a good reason, the employer should make a decision on the evidence
available.
n The employer should provide the employee with an opportunity to appeal. Appeals
should be heard without unreasonable delay, preferably by a manager who has not pre-
viously been involved. The employee has the right to be accompanied at the appeal. The
outcome of the appeal should be communicated in writing without unreasonable delay.The Code is not legally binding but is admissible as evidence and can be taken into account
by the employment tribunal. A tribunal, if it considers it just and equitable, can increase any
award to an employee by up to 25 per cent if it appears to the tribunal that the employer
has unreasonably failed to comply with the Code. There is a corresponding power to reduce
the award by up to 25 per cent where it is the employee who has unreasonably failed to
comply with the Code.
Under PolkeyvA E Dayton Services Ltd (1988)a dismissal might be unfair, even if for
one of the fair reasons specified and even if the employer acted within the band of reason-
able responses, purely because the correct dismissal procedure was not complied with. In
such cases the tribunal should reduce or eliminate the compensation payable, other than the
basic award (see below at pp. 371–2), to reflect any likelihood that the employee would have
been dismissed even if the correct procedures had been complied with. Despite the Polkey
ruling, there will have been no unfair dismissal if the tribunal concludes that the employer
acted as a reasonable employer would have acted in taking the view that, in the exceptional
circumstances of the particular case, the normal procedural steps would have been futile
and were dispensed with because they could not have altered the decision to dismiss.Automatically unfair dismissals
A dismissal is automatically unfair if it was:(i) on the grounds of the employee trying to enforce a relevant statutory right;
(ii) on the grounds of pregnancy;
(iii) for being a member of a trade union;
(iv) for being on strike, if the dismissal occurred in the first eight weeks of the strike;