Disciplinary

Some conduct issues can be dealt with in an informal way by speaking to the employee 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 employer, and if a proper process is not followed then the action is unlikely to be fair.

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) 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

It is not a mandatory requirement for employers to have a disciplinary policy in place, but it can be extremely helpful when dealing with disciplinary matters as it 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

For a compliant policy please see:

D17: Disciplinary Policy and Procedure

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 an employer 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 proper process is followed. The disciplinary process broadly involves:

• Conducting an investigation
• Inviting the employee to a meeting, setting out the allegations against them, see:

D4: Invitation to disciplinary meeting: potential written warning

D5: Invitation to disciplinary meeting: potential final written warning

D6: Invitation to disciplinary meeting: potential dismissal following previous warnings

D7: Invitation to disciplinary meeting: potential dismissal for gross misconduct

• Hold the meeting with the employee and see what they have to say, see:

D18: Guide to conducting disciplinary meetings

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

D10: Written warning

D11: Final written warning

D12: Dismissal with previous disciplinary warnings

D13: Gross misconduct dismissal

D14: No further action

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

D8: Invitation to appeal meeting

• old the appeal meeting and decide on an outcome to the appeal:

D19: Guide to conducting appeal meeting

D15: Appeal outcome letter

All employees are entitled to be accompanied to a meeting, that may result in disciplinary action (including dismissal) being taken against them, by either a colleague or Trade Union representative. Where the employer fails to allow the employee to be accompanied to a disciplinary meeting and they subsequently bring a claim in the Employment Tribunal, this failure in itself attracts a separate award of compensation.

• Not investigating the allegations properly

Often employers 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 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

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.

• Not informing the employee that they may be dismissed following the disciplinary meeting

Where an individual may be dismissed following a disciplinary meeting 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 meeting.

• Inconsistent treatment of employees

Clearly, each case turns on its own facts, and there may be reasons why an employer imposes a lesser disciplinary sanction on a particular employee than it does on another. However, employers 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.

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 employees 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, attract much higher potential awards of compensation.

For further guidance on the appropriate disciplinary/dismissal process and useful documents please see: