Disciplinary procedures can often lead to dismissal and it is therefore imperative that a fair procedure is followed. Failure to follow a procedure at all will always result in a finding of unfair dismissal.
The ACAS Code of Practice on Disciplinary and Grievance Procedures provides practical guidance to employers and employees on carrying out fair disciplinary procedures for misconduct or poor performance. Employment tribunals will take the Code into account when considering whether an employer acted reasonably.
In order for a dismissal to be fair it must fall within one of 5 potentially fair reasons. These are:
- A reason related to capability;
- A reason related to conduct;
- Contravention of legal requirement; and
- Some other substantial reason.
The employer must also have acted reasonably in treating the given reason as sufficient to justify dismissing the employee. Over time this requirement has been interpreted as including the need to follow a fair procedure before deciding to dismiss.
It is recommended that informal discussions be used initially to attempt to resolve matters without the need for formal action. The employee should be advised that formal action may be commenced if discussions do not prove fruitful. Informal verbal warnings may be given at this stage.
An investigation into disciplinary action is critical if an employer is to comply with the ACAS Code. The law requires an employer to have a reasonable belief in the employee’s guilt based on a reasonable investigation.
As part of the investigation the employer should meet with the employee to get their version of events. Such a meeting would not negate the need for a further disciplinary meeting even where an employee admits guilt. There is no requirement to allow the employee to be accompanied to an investigatory meeting, although it is always good practice to do so.
The level of investigation needs to be reasonable in all the circumstances and the more serious allegation, the more extensive the investigation should be.
In cases of serious misconduct an employer may wish to suspend the employee under investigation. This may be appropriate where their continuing at work could jeopardise the investigation or even the business. The period of suspension should be as short as possible. Employers should not suspend without pay.
Proceeding to disciplinary action
If, following the investigation, the employer considers formal disciplinary action is necessary, they will need to write to the employee to convey the outcome of the investigation and confirm whether there is a disciplinary case to answer and, if so, set out the allegations. The employee should be invited to a disciplinary meeting at a reasonable time and place and will be given sufficient time to prepare their case, as well as being provided with all the evidence gathered during the investigation.
It is important to set out the allegations clearly against the employee to allow them the opportunity to put forward their story. The severity of the allegations, as well as the possible outcome of the meeting should be stated. For instance, if the outcome of the meeting might be dismissal, the employee needs to know that they are fighting for their job.
Where possible, it is important to ensure that the individual holding the disciplinary hearing is not the person who conducted the investigation as their partiality could be questioned. This may not be practical in smaller organisations. It is also advisable to have a second person at the meeting to take notes. The employee should be allowed to be accompanied to the hearing by a fellow worker or a trade union representative.
At the hearing the disciplinary officer should set out the allegations against the employee and go over the evidence gathered. The employee and their companion should be allowed to raise any questions as necessary and the employee should then be given a reasonable opportunity to present their version of events and any evidence in support. The employer will then summarise the information and close the meeting, advising that a decision will be confirmed in writing at a later date. It may be that some further investigation is also required before a decision can be made.
Where the outcome of the disciplinary procedure is dismissal, employers often lose cases where they have not persuaded a tribunal that a dismissal was a fair and reasonable sanction in all the circumstances. The tribunal will ask whether a reasonable employer would have acted in the same way.
Another outcome of the hearing may be that a warning is issued. The ACAS Code recommends that employees are given at least one chance to improve before a final written warning is issued. Employers may take into account live warnings on the employee’s personnel file, but may only take into account any expired warning where this is not the principal reason for subsequent dismissal. Warnings should advise of the length of time they will remain active and that any further misconduct during that period may result in further disciplinary action.
Whatever the outcome of the process the employee should be given the right to appeal against the decision. Should the employee appeal, an appeal meeting should be arranged and a more senior (or at least, as senior) manager independent from the original disciplinary process should be appointed to conduct the meeting. The outcome of the appeal should be confirmed in writing, confirming whether the appeal is dismissed or upheld.
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