Schools

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:

Conducting a reasonable investigation

D22: Guide to conducting investigation meetings

D4: Invitation to investigation meeting

D5: Invitation to investigation meeting (witnesses)

Inviting the employee to a disciplinary hearing, setting out the allegations against them, and allowing them the opportunity to put forward their version of events. See:

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

Hold the disciplinary hearing with the employee and see what they have to say, see:

D23: Guide to conducting disciplinary meetings

Decide on an appropriate sanction, confirming this in writing, see:

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

If someone exercises their right of appeal then invite them to an appeal hearing, see:

D10: Invitation to appeal meeting

Hold the appeal hearing and decide on an outcome to the appeal:

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”.

Not investigating the allegations properly or reasonably

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.

Not informing the employee ahead of the disciplinary process what the allegations against them are, or not setting out the allegations in clear terms.

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.

Not informing the employee that one potential outcome of the disciplinary hearing may be their dismissal.

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.

Inconsistent treatment of employees

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