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Disciplinary

Disciplinary

It is inevitable that every business from time-to-time will be required to undertake a disciplinary procedure.  Whilst most staff are self-motivated and self-disciplined, this is certainly not the case for all staff.  As businesses grow the prospects of employing staff that are not self-disciplined and don’t follow the rules increases.

Every employer must have a Disciplinary Policy and Procedure and this must be followed in instances of disciplinary action.  Also, as well as the employer’s own Disciplinary Policy and Procedure, the employer must ensure they comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures.

The Legal Position

When it comes to Disciplinary matters, the law of Unfair Dismissal applies.  This says that an employee may not be unfairly dismissed.  There are several potentially fair reasons for dismissal including conduct – which is where disciplinary procedures come into play.

Another area of the law around Unfair Dismissal says that the dismissal must be fair in all the circumstances with regard to the size and administrative resources of the business.  This is generally where following a fair procedure and a fair process comes into play.

Finally, another area of the law around Unfair Dismissal says that the outcome of the disciplinary procedure must be within the band of reasonable responses open to a reasonable employer.  Basically, this means that ‘the punishment must fit the crime’ and the outcome must not be excessive.

In reality then, when handling Disciplinary processes the following must be borne in mind:

  1. Have a fair reason
  2. Follow a fair process
  3. Give a fair outcome

It is the employer’s responsibility to ensure fairness on all three strands.  Two out of three is not enough.

Disciplinary Procedures where the Employee is not dismissed

Even where a disciplinary process is not likely to result in dismissal, it is imperative that the employer still ensures all three strands of fairness.

An Employment Tribunal will expect all steps in the Disciplinary process to have been followed at all times.  They can, and often do, look behind previous warnings when the circumstances permit.

Further, employees have a legitimate expectation that an employer will follow their own procedures and a failure to do so can give rise to other forms of claims.

Any employer who is considering departing from their regular procedures should take proper advice from their Trusted Advisers.

Short Service Dismissals

With the above in mind, it is important to remember that employees with under 2 years’ service cannot claim Unfair Dismissal in regular cases.  They can still claim Unfair Dismissal in special cases called ‘automatic’ unfair dismissal such as whistle-blowing and asserting their statutory rights.  They will have other rights too such as discrimination protections under the Equality Act 2010.

If any employer is looking to by-pass the full disciplinary procedure and rely on the employee’s short service, they should still take advice from their Trusted Advisers to check against the further claims open to short service employees.

Fair Reason

Conduct is a potentially fair reason for dismissal.  Conduct can cover everything from lateness to theft.

It is important for employers to remember the reasons for invoking the disciplinary procedure.  Different reasons should be separated and not confused.  For example, if the employee is performing poorly (e.g. not hitting targets) and has also recently broken some rules, the matters should be handled separately as one is performance and one is conduct.  The two should not be confused.

Fair Process

A fair process usually consists of three steps:

  1. Investigation
  2. Disciplinary
  3. Appeal

Again, a Tribunal will expect the employer to have acted fairly at all three steps.  Wherever possible, each of the three steps should be performed by different managers.

Investigation

An investigation is an informal step where employers can find out what happened and why.  An investigation must be neutral to find out the facts of what has happened.  It must not be a witch-hunt aiming to find evidence of wrong-doing or targeted towards specific individuals.  Very often the investigation will include gathering documents, reviewing CCTV, speaking with witnesses and speaking with the person who has likely engaged in misconduct.

Disciplinary

Once it has been established whether or not an employee may have engaged in misconduct, the employee should be invited to a disciplinary hearing.  The invitation letter must make clear what the allegations are and enclose all the evidence from the investigation.  It should give the employee plenty of time to prepare their defence.  Very often this is 2 days advance notice but in some instances this should be more.  The invitation letter should also warn the employee if they may be dismissed and set out the rights of the employee such as their right to be accompanied by a trade union representative or a fellow work colleague.

In the disciplinary hearing the employee should be given an opportunity to comment on each allegation and the evidence that relates to it.  The employee should be able to defend themselves fairly so the employer should not make their mind up before the hearing.  After the hearing, the employer should think carefully about each allegation individually, whether the allegation is upheld, whether a sanction is appropriate and then what that sanction should be.  This should then be communicated to the employee and confirmed in writing.

The Tribunal’s role in assessing the conclusions reached by the employer is to assess whether or not the employer had a genuine belief that the allegation was made out, that the belief is based on reasonable grounds and that the employer undertook a full and fair investigation.  Very often a Tribunal may comment that they would have reached a different conclusion but that their role is not to substitute their opinion for that of the employer’s.  Therefore the Tribunal having a different opinion does not necessarily mean that the dismissal is unfair.

Appeal

If an employee disagrees with the outcome of the disciplinary procedure they should be given an opportunity to appeal.  This will often take the form of a review of the previous procedure or a rehearing.

Fair Outcome

The principle behind this is, in simple terms, that the ‘punishment must fit the crime.’  For example, it is unlikely that an employee with 10 years clear service will be fairly dismissed for turning up 30 seconds late once on an ordinary day when there was a crash on the motorway near work causing excessive traffic.

Even where an employer has a fair reason and follows a fair procedure, if the Tribunal considers the outcome to be excessive they can hold the dismissal to be unfair.  The test is whether the outcome falls within a band of reasonable responses – it is not whether or not the Tribunal would have dismissed the employee.  The Tribunal accepts that different employers treat different disciplinary matters with differing levels of severity and concern.  Therefore, the Tribunal considers what would have been a band of reasonable responses and then assess whether the employer’s response falls within that band.

Gross misconduct will likely result in dismissal but it is not automatic.  Employers should still consider whether a Final Warning and an opportunity to improve is an appropriate outcome.

For serious misconduct that falls short of gross misconduct, it is often appropriate to give the employee a more serious sanction (such as a written or final warning) than lower-level warnings (such as a verbal warning).

Suspensions

In most cases of gross misconduct, it will be necessary to suspend an employee during the investigation and disciplinary stages.  This should be done where the business, clients, suppliers, the employee or other staff need protecting or when suspension is necessary to assist a fair investigation.

Suspension should not be a knee-jerk reaction.  Suspension is with full pay and should be for as short a period as possible.  Sometimes it is appropriate to suspend the staff member from specific duties rather than fully suspend them.

Always take advice from your Trusted Advisers before suspending.

Conclusions

Unfortunately, every business at some point will need to use the disciplinary process.  Make sure that you do it fully, properly and fairly.  Take advice from your Trust Advisers at every step.

We would highly recommend having Trusted Advisers in your corner to help you.  Wilford Smith’s business focused services specialise in Employment Law, Commercial Law, Company Law, Commercial Conveyancing, Regulatory and Criminal Investigations.

We can be your Trusted Adviser in all areas.

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