Dismissal on grounds of illegality or some other substantial reason

Procedure

1. Application and scope

1.1 There may be circumstances which, although not covered by any of the other University procedures, lead the University to contemplate the dismissal of an employee. In such circumstances dismissal for some other substantial reason may be a fair reason for terminating employment.

1.2 The procedure applies to all employees employed by the University of York under a contract of employment, and provides a framework for dealing with cases where the University is considering dismissing an employee on grounds other than those for which specific procedures are in place. It is intended to apply where dismissal of an employee is contemplated on one of the following grounds:

  • It is considered that the employee cannot continue to work in the position which s/he holds because to do so would mean that s/he and/or the University would be in breach of legislation ('illegality'). In such cases the University may need to terminate the employment with immediate effect and the provisions under part 4 below may not apply. The employee will still have the right to appeal against his/her dismissal.
  • It is considered that there is some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which s/he holds ('a substantial reason')1.

2. General principles

The following principles will apply to the application of this procedure:

2.1 Right to be accompanied - All employees who are the subject of this procedure will have the right to be accompanied at any formal meeting held under the procedure by a trade union representative or work colleague.

2.2 Equality and diversity - To ensure fair treatment and, where appropriate, provision of support by the University in the application of this procedure, employees should be invited to provide information about any equality or diversity issues which may be relevant.

2.3 Suspension - At any stage in the procedure, if appropriate, an employee may be suspended. Suspension is not a penalty, there is therefore a presumption that suspension will be on full pay. There may, however, be exceptional circumstances when pay may be withheld during a period of suspension. The decision to suspend will be taken by a Head of Department (academic Departmental Head, Head of, or Director of Support Service Department) or a member of the University Executive Board. Any decision to withhold pay during a period of suspension must be authorised by the Director of HR.

2.4 Appeals against dismissal - Any dismissal under this procedure will remain in force pending the outcome of any appeal.

2.5 Confidentiality - All parties involved in these procedures must ensure that they maintain, as appropriate, the confidentiality of the process within and outside the University.

2.6 Timescales - Whilst every endeavour will be made to comply with timescales, due to the complexity and or specific circumstances of a case, timescales may be extended. In such circumstances the employee will be advised of the reasons for any delay.

2.7 Involvement of Human Resources - A member of the Human Resources team will be consulted and will advise on the formal process including suspension.

3. Investigation

3.1 Where necessary an investigation will be undertaken to establish whether there are grounds to consider dismissal in accordance with this procedure. In such cases the Head of Department will appoint an investigating officer. Where the University considers it appropriate the contents of an investigation undertaken under another procedure may be used as part of this process.

4. Procedure

4.1 The employee will be invited to a meeting with the Head of Department (or nominee) who may be accompanied by a member of the HR team. A letter will be sent to the employee detailing the purpose of the meeting and the circumstances that have led the University to consider terminating employment.

4.2 In cases involving an investigation, the meeting will take the form of a hearing conducted by the Head of Department (or nominee). The employee will be provided with a copy of the investigation report, normally at least ten working days in advance, and will be invited to make any written submissions and, where appropriate, bring forward witnesses that s/he believes are relevant to the case. Prior to the hearing s/he will be provided with copies of any other papers that will be considered at the meeting.

4.3 The employee will be given an opportunity to present his/her case2, question witnesses and raise any issues s/he wishes to have considered. The manager conducting and hearing the case will be able to question all those involved in the case.

5. Outcome

5.1 The manager conducting and hearing the case will consider all representations before reaching a decision. The decision may include (but will not be limited to) the following outcomes:

  • That the employee's employment should be terminated with/without appropriate notice or pay in lieu of notice3
  • That there are insufficient grounds to dismiss the employee under this procedure
  • That the case should be considered under an alternative procedure

5.2 The decision may be given verbally at the meeting/hearing and will in any event be conveyed or confirmed in writing within five working days of the meeting/hearing. The correspondence shall also notify the individual employee of his/her right to appeal against any adverse decision. In the event that the decision is taken to dismiss the employee, the correspondence will include the reasons for dismissal and the date that his/her employment will terminate, together with details of any notice arrangements.

6. Appeals

6.1 The employee has the right of appeal against a decision to terminate his/her employment under this procedure. Any appeal should be sent to the Director of HR within ten working days of the employee receiving the written decision to dismiss. The appeal must state the grounds for appeal.

6.2 The appeal will be heard by an appeal panel consisting of three senior managers of the University appointed by the Vice-Chancellor and will include academic representation where appropriate. The appeal panel will have had no prior involvement with the case and the appeal hearing will be a review of the decision to dismiss.

6.3 The decision may be given verbally at the appeal hearing and will in any event be conveyed or confirmed in writing within ten working days of the hearing.

6.4 The decision following the appeal shall be final and there will be no further internal right of appeal.

This procedure will be reviewed periodically to ensure compliance with changes in employment law and equality and diversity legislation.

Guidelines are available and should be referred to in the application of this procedure.

Notes

  1. Examples of substantial reasons may include (but are not limited to) the following:
    1. Dismissal of a member of clinical academic staff whose honorary NHS contract is withdrawn or whose registration is revoked or suspended
    2. Dismissal arising from the expiry of a fixed-term contract where the reason for the expiry and non-renewal of the fixed-term contract is not redundancy because the requirement for employees to carry out the work has not ceased or diminished e.g. where an individual is covering for sabbatical, maternity leave etc.

  2. In some cases it may not be possible for the employee to attend in person and the case may be presented by his/her representative.
  3. If the continued employment of an employee would be in breach of legislation notice will not be given.

Document control

  • Approved on: 1 May 2011