Douglas King gets legal guidance this week on the legal considerations of re-employing a worker dismissed six years previously; read on to find out what the experts say.

The question:
“Is there any reason an employer should/could not re-employ a person after they have been dismissed for Gross Misconduct? The misconduct happened six years ago. They would not be employed in the same position or department, or in fact doing anything similar to their previous job. I am of the opinion to avoid this but some are willing to look again … forgive and forget so to speak.”

Douglas King

The answers:
Stephanie Wootton, employment law expert, Browne Jacobson

Dismissing an employee for gross misconduct implies that the individual committed a fundamental breach of contract entitling you to summarily dismiss them without any notice pay.

Dependent on the circumstances the breach may have been as a result of one serious incident or following a number of small breaches, which taken together amounted to a fundamental breach.

There is nothing in employment legislation or case law specifically preventing re-employment in these circumstances, but it does seem to undermine the dismissal for gross misconduct in the first place. If an employee really had committed a fundamental breach of contract entitling you to instantly dismiss for gross misconduct, would you really want to re-employ them?

The normal time limit for bringing an unfair dismissal claim is three months from the effective date of termination. In this case the dismissal happened six years ago, therefore it is unlikely that the employee will be able to use the offer of re-employment as evidence that the dismissal for gross misconduct should not have occurred.

It is difficult to judge without knowing the grounds of the dismissal or the nature of the breach. There may be circumstances where, six years on, it is appropriate to consider the individual for re-employment. If the gross misconduct was as a result of a capability issue for instance where the likelihood of the employee repeating the mistake is limited.

This may be appropriate if the position is a completely new role with different skills required or if the employee has gained additional experience or qualifications. Re-employment in this instance would seem less risky. However, if the incident which led to the dismissal involved fraud or deception for example, then from a practical rather than legal perspective you may not feel comfortable re-employing that individual, in any capacity.

Depending on all the circumstances, you will have to decide if you are prepared to take the risk of re-employing. You should also consider the impact on any existing employees if you do. For example, it may create problems in the workplace if the employee was dismissed for sexual harassment and the individual who made the allegation was still employed, or in circumstances where other employees who knew about the original incident or conduct feel that they cannot work with or respect the dismissed employee.

If you do take the decision to re-employ this individual you should ensure that you have an effective review and appraisal procedure within the first 6-9 months so that if there are any issues, you can deal with them quickly and usually without the employee having the right to claim unfair dismissal.

Stephanie can be contacted at: swootton@brownejacobson.com

Nicholas Snowden, senior solicitor at Clarkslegal LLP

This is quite an unusual situation. The short answer is that there is no reason in law why you cannot re-employ a former employee who has previously been dismissed for gross misconduct.

However, you need to consider whether re-employing the individual will undermine your company’s position when dealing with future disciplinary situations involving other employees who are guilty of similar misconduct. Re-employing the individual sends out the message that his conduct was not all that bad, especially to those with the length of service to remember the individual.

If you decide that this disadvantage is outweighed by the advantage of re-employing the individual, another issue to consider is trust. Trust is a key component in any employment relationship.

Therefore, as a practical suggestion, I think you should ask yourselves whether or not you feel able to trust the individual. The answer to this question may depend on the nature of his act of misconduct. If the answer is ‘no’, employing him should really be a non-starter.

Remember that once the individual has a year’s service, he will have full employment protection and if he steps out of line, you will have to treat him consistently with other staff. You will not be able to refer back to the misconduct which led to his previous dismissal to justify harsher action against him than you would take against one of his colleagues.

As long as those within your company who want him back are aware of these issues and are happy to proceed on that basis, there is nothing to stop you re-employing this individual.

Nicholas Snowden can be contacted at nsnowden@clarkslegal.com

HRZone highly recommends that any answers are taken as a starting point for guidance only.

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