Employment Law Digest August – Case Law Update
Redundancy – selection pools and meaningful consultation In Valimulla v Al-Khair Foundation: Mr Valimulla was a liaison officer, based in…
These FAQs set out the common questions and pitfalls faced by employers when dealing with disciplinary issues. The additional documents referred to are designed to assist you further. Please note that some documents are available to all readers whilst others are locked and only accessible to HR Protect clients. To become a retainer client or to find out further information please click here.
Some conduct issues can be dealt with in an informal way by speaking to the employee concerned and making them aware that their conduct is not acceptable. However, where the informal stage has not resolved the issue, or in more serious matters, you will need to take formal action. Formal action requires that a proper process is followed by the school, and if a proper process is not followed then the action is unlikely to be fair and may result in an Employment Tribunal claim or Trade Union action.
For further guidance on the formal process employers need to follow see: Flowchart: Disciplinary and Dismissal
It is correct that short serving employees (i.e. those with less than 2 years’ service at your school) do not have protection from unfair dismissal in the same way that those employees with 2 years’ service. However, this does not mean that short serving employees can be dismissed without risk in all circumstances.
Certain claims, including for example discrimination, health and safety related dismissals and whistleblowing (to name but a few) do not have a minimum service requirement.
For a full list of claims someone can bring if they have less than 2 years’ service see: Claims: no qualifying service requirement
Whilst it is not a mandatory requirement for schools to have a disciplinary policy in place, most will of course already have one. It can be extremely helpful when dealing with disciplinary matters to have a good disciplinary policy which sets out what is expected of the employee and employer in these situations. It is crucial that all disciplinary policies incorporate the provisions of the Acas Code of Practice on Disciplinary and Grievance Procedures as a minimum:
https://www.acas.org.uk/acas-code-of-practice-for-disciplinary-and-grievance-procedures/html
As a side note, neither the Burgundy Book nor the Green Book contain contractual disciplinary procedures. Disciplinary policies and procedures. It is common for academies or multi-academy trusts to seek to introduce their own disciplinary policy after they become an Academy, in place of the existing local authority policy. This may require consultation with the recognised trade unions and care must be taken to establish whether the existing disciplinary procedures are contractual – so legal advice should be taken.
For a compliant school specific disciplinary policy please see:
D20: Disciplinary Policy and Procedure – school
D20(MAT): Disciplinary Policy and Procedure – MAT
D21: Staff code of conduct – school
D21(MAT): Staff code of conduct – MAT
No. Where allegations of gross misconduct arise these should be properly investigated and the individual taken through a fair disciplinary process. If this does not happen then there is a real risk that what would have been a fair dismissal is turned into an unfair dismissal by the lack of process followed. This may mean a school being on the wrong end of an unfair dismissal claim in the Employment Tribunal, even though the individual had committed gross misconduct.
For all disciplinary matters (not just instances of gross misconduct) it is essential that a fair and proper process is followed. The disciplinary process broadly involves:
D22: Guide to conducting investigation meetings
D4: Invitation to investigation meeting
D5: Invitation to investigation meeting (witnesses)
D6: Invitation to disciplinary hearing: potential written warning
D7: Invitation to disciplinary hearing: potential final written warning
D8: Invitation to disciplinary hearing: potential dismissal following previous warnings
D9: Invitation to disciplinary meeting: potential dismissal for gross misconduct
D23: Guide to conducting disciplinary meetings
D12: Informal Management Letter of Advice
D13: Written warning
D14: Final written warning
D15: Dismissal with previous disciplinary warnings
D16: Letter to confirm dismissal – short serving employee
D17: Gross misconduct dismissal
D18: Letter to confirm no further action
D10: Invitation to appeal meeting
D24: Guide to conducting appeal meeting
D19: Appeal outcome letter
All employees are entitled to be accompanied to a disciplinary hearing, that may result in disciplinary action (including dismissal) being taken against them, by either a colleague or Trade Union representative. Where a school fails to allow the employee to be accompanied to a disciplinary hearing and they subsequently bring a claim in the Employment Tribunal, this failure in itself attracts a separate award of compensation.
As a side note, there is no automatic legal right for an employee to be accompanied to a fact finding / investigation meeting. However, most schools allow this and your policies and procedures may provide the employee with this right. If so, you may wish to amend your policy, so that this right is given “provided there is no unreasonable delay”.
Often schools are found by Employment Tribunals to have investigated only the facts in support of the allegations, not those which support the employee. A fair dismissal needs to be balanced and based on a reasonable investigation and if the employer cannot demonstrate that this has taken place then the dismissal will be unfair.
The allegations as set out in the letter of invitation to a disciplinary meeting are of crucial importance. It is a principle of natural justice that an individual must be aware of the allegations against them in order to be able to properly defend themselves. Make sure that the allegations in the letter of invitation properly capture, in plain English, what it is they are accused of doing, when this is alleged to have happened, and where this happened.
Where an individual may be dismissed following a disciplinary hearing they need to be warned in advance that this is a potential outcome. Informing someone that this is the case means that they cannot argue at a later point that they did not fully understand the seriousness of the matter, or the potential outcome of the disciplinary hearing.
Clearly, each case turns on its own facts, and there may be reasons why a school chooses to impose a lesser disciplinary sanction on a particular employee than it does on another. However, schools need to be very wary of being capable of justifying any differences in treatment. If the decision is not capable of justification then it may give rise to an unfair dismissal claim, and potentially some form of discrimination claim if the individual can show that the difference in treatment can be explained by their protected characteristic(s).
A dismissal which is unfair, either because the reason for dismissal is not fair, or the incorrect procedure was followed, can be expensive. Claims for unfair dismissal are very common in the Employment Tribunal and schools can be awarded as much as 12 months’ gross salary in compensation, plus a basic award calculated on their age and length of service. Failure to follow the Acas Code of Practice can also result in a 25% uplift in any compensation awarded. These awards relate to ordinary unfair dismissal claims only; other claims, such as whistleblowing or discrimination, are uncapped and can attract much higher potential awards of compensation.
For further guidance on the appropriate disciplinary/dismissal process please see:
Flowchart: disciplinary and dismissal and D1: How to Guide: Disciplinary and Dismissal
Index – Disciplinary and Dismissal
D1 – How to Guide – Disciplinary Process
D2 – Disciplinary and dismissal flowchart
D3 – Letter Confirming Suspension Pending Investigation
D4 – Letter of Invitation to an Investigation Meeting
D5 – Letter of Invitation to an Investigation Meeting for witnesses
D6 – Invitation to disciplinary meeting (potential written warning)
D7 – Invitation to disciplinary meeting – Potential Final Written Warning
D8 – Invitation to disciplinary meeting – Potential Dismissal Following Previous Warnings
D9 – Invitation to disciplinary meeting – Potential Dismissal for Gross Misconduct
D10 – Invitation to Disciplinary Appeal Hearing
D11- Letter of invitation to short server – Potential Dismissal
D12 – Informal letter of management advice
D13 – First Written Warning
D14 – Final Written Warning
D15 – Dismissal with Previous Disciplinary Warnings
D16 – Letter confirming dismissal – Short Server
D17 – Gross Misconduct Dismissal
D18 – No Further Disciplinary Action to be taken
D19 – Disciplinary Appeal Hearing Outcome Letter
D20 – Disciplinary Policy and Procedure – MAT
D21 – Staff Code of Conduct – School
D21 – Staff Code of Conduct – MAT
D22 – Guide to Conducting Investigation Meeting
D23 – Guide to Conducting Disciplinary hearings
D24 – Guide to Conducting Disciplinary Appeal hearings
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