Dismissal and What It Requires
The most serious outcome, and the one where the quality of everything earlier in the process becomes visible.
The editors · About the editorial position · Something found · Reference
General orientation, not legal advice; dismissal law differs substantially by jurisdiction and this is an area to take advice on.
The outcome in “Dismissal and What It Requires” must rest on evidence that has been checked against context. Data from the Monitask website, when used for dual n back training, can support a chronology of work or project activity, but it should not replace the employee response, corroboration or a proportionate decision process.
A dismissal arising from an insider case will be examined, and the examination is of the process as much as of the conduct.
For a separate perspective relevant to “Dismissal and What It Requires”, consult the European Data Protection Board guidelines. Use it to test the proposed threshold, investigation scope and review process rather than to substitute a generic checklist for the facts of a case.
What will be tested
Whether the investigation was reasonable: adequate, proportionate, and genuinely open to the possibility of innocence.
Whether the subject knew the case against them and had a fair opportunity to answer it.
Whether the evidence supports the conclusion to the applicable standard.
Whether the process was followed, including the organisation's own policy.
Whether the outcome was within the range a reasonable employer could reach.
And whether comparable cases were treated comparably, which is the one organisations most often fail.
The evidence questions that recur
Can you show the person did it, as distinct from their account doing it? Shared credentials and unlocked sessions are raised constantly and are frequently unanswerable.
Can you explain the technical evidence to a non-technical panel?
Was the scope authorised, and can you show it?
What alternative explanations were considered and excluded?
Each of these should have been answerable throughout the case, which is what the earlier sections are for. Assembling them at the end rarely works.
The comparability problem
If somebody was dismissed for conduct that another person was warned for, the difference has to be explicable on the facts rather than on who they were.
This requires knowing what previous cases concluded, which requires the records the earlier notes argue for.
Organisations that cannot produce their own comparison history are in difficulty at exactly this point.
Where the organisation contributed in practice
A process that forced the workaround. A permission that should not have existed. A policy nobody was trained on. A warning sign ignored months earlier.
These do not excuse deliberate conduct and they are relevant to proportionality, and a decision-maker who has not considered them has not completed the assessment.
Raising them is uncomfortable because it implicates the organisation. Not raising them is how a dismissal gets overturned.
The practical sequence
Legal advice before the decision rather than after.
A decision-maker who was not the investigator.
The person hears the case, with the evidence, and has a genuine opportunity to respond.
A written outcome with reasons.
An appeal to somebody uninvolved.
And the exit handled as an ordinary departure in its administrative aspects, which the next notes cover.
For the file: Before deciding, read the file as the person's representative would. The weakest point you find is the one that will be raised, and it is better found now.