We are specialist employment solicitors here at Lincs Law Employment Solicitors. We therefore often advise clients who have been disciplined and unfortunately dismissed from work. If you are in this situation, try not to panic. We are here to help.
Please note, this blog focuses on what to do if you have been dismissed after being involved in a fight/ altercation at your work Christmas party. If you are in the early stages of a disciplinary process, you may find our blog here more helpful – https://lincslaw.co.uk/blog/i-had-a-fight-at-my-work-christmas-party-and-now-i-am-being-disciplined-what-should-i-do/
I Have Been Dismissed For Fighting At My Work Christmas Party – What Should I Do?
If you have been dismissed from your employment, you should be afforded the opportunity to appeal the decision.
Whether you decide to appeal your dismissal is, of course, completely your decision. However, if you are unhappy with your employer’s decision to dismiss you, we suggest you submit an appeal. This is because:
a) If you do not appeal, your dismissal will remain on your personnel record and cannot be challenged (internally) months later. Think of your appeal as your last chance to challenge your employer’s decision, to put forward your case and potentially change the outcome. By submitting an appeal, your employer may consider your submissions and change the outcome. For example, you could be reinstated with a Final Written Warning.
b) Also, if you are considering pursuing a claim (such as a claim for Unfair Dismissal, as below) in the Employment Tribunal, an Employment Tribunal Judge will expect you to have exhausted all internal processes which would include appeals. They can reduce your compensation if you fail to do so.
I Have Been Dismissed For Fighting At My Work Christmas Party – How Do I Appeal?
If you have been dismissed from your employment, you should have received confirmation (in writing) of your employer’s decision and the reasons for your dismissal. Information about how to submit an appeal (and the relevant timeframe for doing so) will usually be included in your dismissal letter. If this is the case, it is very important you follow your employer’s own procedure.
Even if your dismissal letter is silent on the appeal process, you should still have the opportunity to appeal. Information about the appeal process may be included in your employer’s disciplinary / appeal policy.
If you have not been provided with information about how to appeal your dismissal and/or you are unsure how to proceed, you should contact the person who dealt with your dismissal as soon as possible, confirm your intention to appeal and ask for details of how to do so.
Importantly, you should submit your appeal in writing. This will assist you and your employer throughout any subsequent appeal hearing and can be essential in the event of a later dispute.
I Have Been Dismissed For Fighting At My Work Christmas Party – What Should I Say In My Appeal?
What you say in your appeal against dismissal will, of course, depend on your personal circumstances and the reasons for your dismissal.
As such, if you wish to appeal your dismissal, we recommend seeking legal advice as soon as possible. Here at Lincs Law Employment Solicitors, we are specialist employment solicitors. We would therefore be delighted to help. For a free consultation with one of the team at Lincs Law Employment Solicitors, simply use the contact form, engage in a web chat, email contactus@lincslaw.com or call us on 01522 440512
As a general guide, your appeal should provide full details of why you disagree with your employer’s decision and the reasons why you consider your dismissal is unfair. This may include grounds such as:
- You do not consider you have done anything wrong / what was alleged.
- Dismissal was an unreasonable sanction, and your employer should have opted for a lesser sanction (such as a warning).
- Your employer failed to consider the context of the act(s) and any mitigating factors.
- Your employer failed to act consistently. For example, you might be aware of others who have done the same acts but have not been disciplined and/or dismissed (such as another colleague involved in the altercation).
- Your employer failed to follow a fair disciplinary procedure, and this impacted your ability to defend yourself against the allegations.
On this last point, importantly, your employer should have followed a fair disciplinary procedure. Your employer should have followed their own disciplinary procedure (if they have one) and, in any event, adhered to the ACAS Code of Practice on Disciplinaries and Grievances (“the ACAS Code”). This sets out the minimum standard expected of an employer when dealing with disciplinary proceedings.
Essentially, your employer should have:
- Investigated the allegations against you to establish the facts of the case (which may, or may not, have included holding an investigation meeting with you); and
- Informed you about the problem, provided you with sufficient information about the alleged misconduct, and explained the possible outcomes of the disciplinary hearing; and
- Invited you to a disciplinary hearing; and
- Allowed you to be accompanied at the disciplinary hearing (for more information about this, please see our blog here – https://lincslaw.co.uk/blog/who-can-i-take-with-me-to-my-disciplinary-hearing/ ) ; and
- Decided on the appropriate action; and
- Informed you of the outcome in writing; and
- Provided you with an opportunity to appeal the outcome (as above).
If your employer did not follow a fair disciplinary procedure before dismissing you, as above, you should raise this within your appeal against dismissal.
I Have Submitted My Appeal Against Dismissal – What Happens Next?
If you have decided to submit an appeal against your dismissal, it is important you understand the next steps. This should be detailed in your employer’s disciplinary policy, if they have one. If this is the case, make sure your employer follows their own procedure!
In any event, as a minimum, your employer should follow the ACAS Code when dealing with your appeal against dismissal. Essentially, your employer should:
- Deal with your appeal impartially. If possible, it should be referred to another member of the organisation (such as another manager).
- Your grounds of appeal should then be reviewed and, depending on the points raised, potentially re-investigated.
- You should then be invited to an appeal hearing. You should be informed about your right to be accompanied at the appeal hearing. This is the same as your right to be accompanied at any disciplinary hearing, and more information about this can be found here – https://lincslaw.co.uk/blog/who-can-i-take-with-me-to-my-disciplinary-hearing/
- Your appeal hearing should be held without unreasonable delay and at an agreed time and place. During this hearing, your employer should consider your grounds of appeal and, if necessary, they may re-hear all of the relevant disciplinary evidence.
- Following your appeal hearing, you should receive the outcome (in writing) as soon as possible.
I Have Been Dismissed For Fighting At My Work Christmas Party – Do I Have A Claim of Unfair Dismissal in the Employment Tribunal?
The short answer is potentially yes!
Generally, you need at least two years’ continuous service with your employer to bring a claim of Unfair Dismissal at the Employment Tribunal. However, there are limited exceptions to this rule. For more information about this, please see our blog here – https://lincslaw.co.uk/blog/unfair-dismissal-less-than-two-years-service/
If you have at least two years’ continuous service with your employer or one of the exceptions (as above) applies, you may have a potential claim for Unfair Dismissal in the Employment Tribunal.
To explain, in a claim of Unfair Dismissal, the burden would be on your employer to prove to the Employment Tribunal that:
- They had a potentially fair reason to dismiss you; and
- In the circumstances, it was reasonable to dismiss you.
I have addressed each of the above points below.
Did Your Employer Have a Potentially Fair Reason To Dismiss You?
Under the Employment Rights Act 1996, there are five potentially fair reasons for dismissing an employee. One of those reasons is (mis) conduct.
To rely on this reason, your employer would need to prove that your conduct was, in fact, the reason for your dismissal and they had a justifiable and genuine belief that you had committed the acts of misconduct.
In The Circumstances, Did Your Employer Act Reasonably in Dismissing You?
Even if your employer can identify a potentially fair reason for your dismissal, this does not necessarily mean the dismissal was, in fact, fair. For a claim of Unfair Dismissal, the Employment Tribunal would then look at the reasonableness of the dismissal. The Employment Tribunal would consider if your employer’s decision to dismiss you falls within the “band of reasonable responses”. Essentially, whether a reasonable employer could have made the same decision.
As part of this consideration, an Employment Tribunal would consider the following:
(i) Did Your Employer Follow a Fair Disciplinary Procedure?
(ii) Was Dismissal A Reasonable Sanction?
(iii) Did Your Employer Act Consistently? For example, if the other party to the fight had not been disciplined or dismissed, your employer may struggle to defend any Unfair Dismissal claim.
For more information about a claim of Unfair Dismissal, please see here – https://lincslaw.co.uk/services/employees/resignation-dismissal-and-redundancy/unfair-dismissal/
Unfair Dismissal – Beware of Time Limits!
If you have been dismissed from your employment and you wish to pursue a claim in the Employment Tribunal, it is very important you are aware of the relevant time limits.
You must start the Employment Tribunal process within three months (less one day) of the date of your dismissal. You start the Employment Tribunal process by initiating ACAS Early Conciliation. More information about ACAS Early Conciliation and time limits can be found here – https://lincslaw.co.uk/blog/acas-early-conciliation-what-is-it-all-about/ and https://lincslaw.co.uk/services/employees/employment-tribunal-claims/
Employment Tribunal time limits are very strict – do not allow any appeal process to distract from these time limits!
Lincs Law Employment Solicitors Can Help You
Here at Lincs Law Employment Solicitors, we often advise clients who are facing disciplinary allegations or who have, unfortunately, been dismissed from their employment. We understand that such circumstances can have a devastating effect on you and your family. As specialist employment solicitors, we would be delighted to help you.
Please contact Lincs Law Employment Solicitors for a free no obligation consultation. Simply use the contact form, engage in a web chat, email contactus@lincslaw.com or call us on 01522 440512 and we’ll be happy to help.
Kate Key
Specialist Employment Solicitor
Lincs Law Employment Solicitors
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