The Disciplinary Procedure:
How to do it correctly…
The disciplinary process - claims
to avoid…
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Breach of the right to request to be accompanied
Breach of contract/ wrongful dismissal
Constructive unfair dismissal
Unfair dismissal
Unreasonable failure to follow ACAS code of practice
Discrimination
Whistle-blowing
Disciplinary Procedure
• ACAS code states :
• In writing
• Specific and clear
• Accessible
• Drawn up with the involvement of employees, and where
appropriate employee reps.
• Should state conduct considered to be ‘misconduct’
• Does not automatically determine fairness
ACAS Code of Practice on Disciplinary &
Grievance Procedures
• Applies to ‘disciplinary situations’; includes misconduct and poor
performance dismissals.
• Statutory code - Tribunal take account of it in relevant situations.
• An employer’s unreasonable failure to follow it may result in an increase
of +25% in any Compensatory Award for unfair dismissal.
ACAS Code – Misconduct & Poor Performance
Key Steps
1.
2.
3.
4.
5.
6.
Undertake a reasonable investigation
Notify the employee of the issues in writing
Invite the employee to attend at a disciplinary
meeting (remember the employee’s right to be
accompanied)
Consider all the evidence prior to reaching a
decision
Inform the employee of the decision in writing
Offer the right of appeal
10 Common Pitfalls for Employers
1.
2.
3.
4.
Do not delay in dealing with disciplinary issues
Warn the employee at the outset of the possible consequences of
the disciplinary action, the allegations and provide copies of the
relevant evidence
Uncooperative witnesses?
Whoever investigates should be different to the person hearing the
disciplinary meeting
10 Common Pitfalls for Employers
5.
6.
7.
8.
Allow the employee to be accompanied at a
disciplinary hearing
Maintain clear records of the whole disciplinary
process
Employee raises a grievance
Employee is absent due to sickness (classically
‘stress’)
10 Common Pitfalls for Employers
9.
Consider any arguments of mitigation, including any
health issues (The Governing Body of Hastingsbury
School v Clarke UKEAT 07)
10. Consider the appropriate sanction. Is it gross
misconduct? Any previous warnings? Mitigation? If
considering dismissal – is there an alternative to
dismissal?
Fair dismissals
S.98 Employment Rights Act 1996:
• It is for the employer to show the reason (or, if more than one, the principal
reason) for the dismissal; and
• That it is a reason that falls within 98(2) or else is ‘some other substantial
reason’.
• s.98 (2) – capability
misconduct
redundant
breach of a statutory duty or restriction
Fair dismissal
The reasonableness of the dismissal:
• whether in the circumstances (including the size and administrative
resources of the employers undertaking) the employer acted
reasonably or unreasonably in treating it as a sufficient reason for
dismissing the employee, and
• shall be determined in accordance with equity and the substantial
merits of the case
Fairness: a dismissal must be both procedurally and substantively fair.
Substantive fairness and the ‘range of
reasonable response’
• Did the employer’s decision to dismiss fall “within the range of
reasonable responses that a reasonable employer in those
circumstances and in that business might have adopted” (Iceland Frozen
Foods v. Jones [1982] IRLR 439).
• Tribunal will not ‘substitute its view’ for that of the employer (Midland
Bank Plc v Madden [2000] IRLR 82).
• This test applies to both (1) decision to dismiss and (2) to the
investigation which lead to dismissal (Sainsbury’s Supermarkets Ltd v
Hitt [2003] IRLR 23).
Reasonableness of misconduct dismissal
At the time of dismissal:
• the employer believed the employee to be guilty of misconduct;
and
• it had reasonable grounds for believing that the employee was
guilty of misconduct.
• At the time that it formed that belief on those grounds it had carried
out as much investigation as was reasonable in the circumstances.
(British Home Stores Ltd v Burchell [1978] IRLR 379)
Reasonableness of capability dismissal
• Did the employer honestly believe that the
employee was incapable of performing
their job?
• Has the employer clearly communicated
the requirements of the role to the
employee, or where applicable provided
the necessary support and training?
Unfair Dismissal – Quality of Investigation
Stuart v London City Airport [2013] EWCA
• Employer held thorough investigation into alleged theft by employee.
• Neither party sought to rely on CCTV at dismissal.
• Court of Appeal held reasonable for employer not to consider CCTV
evidence when employee had had adequate opportunity to make
representations at Hearing and employer had formed reasonable view
based on other evidence.
• No need for a ‘no stone unturned’ investigation.
• But, Salford Royal NHS Foundation Trust v Roldan [2010] EWCA,
investigation must be even handed.
Unfair Dismissal – Warnings?
Davies v Sandwell MBC [2013] EWCA
• Employer was entitled to take into account a final written warning on
employee’s record, even though in issuing the warning, the employer
had refused to consider evidence which might have persuaded it not to
do so.
• Employers may take live warnings into account when considering
appropriate sanction.
• It is not always unreasonable for an employer to take into account if
employee fails to appeal.
• Expired warnings, note the decision in Airbus UK Limited v Webb [2008]
EWCA that expired warnings can be considered if the employee's
misconduct on its own was the principal reason for the dismissal.
Unfair Dismissal – Increasing Sanction at Appeal
McMillan v Airedale NHS Foundation Trust [2014] EWCA
• What options are available to employer if it wishes to increase
sanction at appeal
• CoA held: Not open to employer to increase sanction at appeal as
did not allow for this in contractual disciplinary procedure
• Acas guidance also states that appeal should not be used as an
opportunity to punish those who appeal original decision.
Ben Mason
Solicitor
DDI: 01564 334612
E: ben.mason@schofieldandassociates.co.uk
Milverton Villas
6 Wilsons Road
Knowle, Solihull
West Midlands
B93 0HZ
www.schofieldandassociates.co.uk