Once an employee has passed their probationary period, you can never really just sack them on the spot and have them escorted from the premises. Even for behaviour that we might consider to be gross misconduct, a proper dismissal process should be followed.

You could argue that any employee who has less than two years’ service hasn’t accrued any rights and can therefore be asked to leave without reason. However, if a situation has arisen that calls for a formal process to be followed, we strongly recommend that this takes place in order to eliminate any risk of wrongful dismissal.

Even for the most serious of misdemeanours, such as theft, fighting or sleeping at work, employers have to go through a formal disciplinary procedure or potentially face a claim for unfair dismissal at Tribunal.

If you feel that the offence is so serious the employee is a risk to the business and so shouldn’t be at work or on the premises, then a suspension is usually your best option whilst the disciplinary process is undertaken. Even then, suspension should be a last resort for the most serious of incidents, where their presence in the business may be a risk to the business or others; and remember, it will be on full pay.

Your disciplinary process should start with an investigation. Depending on the offence, the investigation may amount to simply interviewing solely the employee in question. You should interview other employees for evidence where appropriate and take statements that interviewees have the option to review and sign.

Your investigation might also potentially involve seeking statements and evidence from outside your organisation from sources such as your customers or the Police. Under GDPR, it’s likely to be very difficult to acquire CCTV footage unless it’s your own.

If the investigation warrants a move to disciplinary action (and we can assume that for a gross misconduct offence it will), then the offending employee should be invited to a disciplinary meeting. Give at least 48 hours’ notice prior to the meeting taking place and you must share any evidence you intend to refer to. You must also allow the employee representation at the disciplinary meeting which can be either a work colleague or an elected representative (not simply a member) of a trade union; even if you don’t have a trade union active at your workplace.

We also recommend that somebody different to the investigator undertakes the disciplinary meeting. Should they decide that summary dismissal is the appropriate course of action, then at that stage employment can be terminated and done so without any period of notice. Remember however that the employee is entitled to appeal any disciplinary decision that is made and it is best practice to have the appeal heard by a different and more senior manager to the one that heard the disciplinary meeting.

We are often asked to support clients through disciplinary processes and we can act on your behalf at any stage; investigation, disciplinary, including dismissal, and appeal. If you have a disciplinary case that you would like some support with then please call us on 01452 331331 or e-mail This email address is being protected from spambots. You need JavaScript enabled to view it.

If you have any uncertainty, seek advice as early in the process as possible. Most Tribunal cases fail because the early stage processes have not been carried out satisfactorily.