Disciplinary Procedures: 10 common breaches of the Acas code of practice
In unfair dismissal claims, did you know that employment tribunals take the “Acas code of practice
on disciplinary and grievance procedures” into account and may increase an award of
compensation by up to 25% for an employer’s unreasonable failure to follow it.
But where do employers commonly go wrong? Below we provide you with a breakdown of the most
common faults:
1. Not warning the employee at the outset of the possible consequences of the disciplinary action.
From the outset, the employer must tell the employee the possible outcome of the disciplinary
action. In order to give a fair chance of defending the allegation properly, it should not come as a
surprise to the employee later on in the process that dismissal is a possibility.
2. Not setting out the nature of the accusations clearly to the employee. The employer should set
out the alleged misconduct clearly and should, throughout the disciplinary process, be consistent in
what it is accusing the employee of. New allegations that come to light during the investigatory
stage can be added to the process, but any disciplinary sanction must be imposed only in respect of
allegations that were properly investigated and brought to the employee’s attention as part of the
proceedings.
3. Not providing the employee with relevant evidence. The employer should provide the employee
with all the evidence (typically in the form of witness statements) in advance of the disciplinary
hearing. Ideally, the evidence should be provided when the employee is invited to the hearing, or at
least far enough in advance for him or her to be able to prepare a defence.
4. Not operating a system of warnings where appropriate. In some cases, the alleged misconduct will
be so serious that summary dismissal for a first offence will be justified. However, in cases of minor
misconduct, a series of warnings before dismissal will be appropriate.
5. Not allowing the employee to be accompanied at a disciplinary hearing. There is a statutory
requirement to allow the employee to be accompanied at a disciplinary hearing.
6. Relying on evidence from one particular source with no corroborative evidence. There may be
limited circumstances where one individual’s evidence is enough to lead to a disciplinary sanction,
but an employer should always look for more. Employers should be alert to the problems of relying
on one person’s evidence and always look for corroborative evidence.
7. The absence of an adequate appeal stage. The right of appeal is fundamental to ensuring natural
justice. Employers should give the employee the opportunity to appeal when the outcome of the
disciplinary hearing is communicated to him or her. Appeals should be unbiased and not be a
“foregone conclusion”.
8. Failure to keep clear records of the whole disciplinary process. To stand the best chance of
successfully defending employment tribunal claims, employers must keep clear records of each
stage of the disciplinary process. It is too easy for claimants to find inconsistencies in the evidence if
witnesses have to rely purely on memory.
9. Delays in dealing with disciplinary issues. Most cases should be dealt with in a matter of weeks
and unexplained delays in the disciplinary proceedings will always be frowned upon by tribunals.
However, more complex or difficult cases (for example, where fraud or a criminal offence is alleged)
will inevitably take longer.
10. Having the same person deal with the whole disciplinary process. A common failing found in
tribunal claims is that the same individual is in charge of the disciplinary process from start to finish.
Ideally, different people should carry out the investigation, disciplinary hearing and appeal stage.
If you would like support for your managers to deal with disciplinary situations, contact us via Live
Chat facility at www.121hrsolutions.co.uk
Members Q& A corner
Q:
We have two employees currently under disciplinary investigation for taking extended
breaks, then clocking their correct break during working time. Our main evidence of this is
CCTV footage. The company IT specialist is absent from work due to sickness and the
investigation is taking a long time. Is there a specific time limit on using CCTV footage as
evidence? In our handbook, we don't state that CCTV could be used in disciplinary
proceedings. Could an employee use this as an argument not to accept the footage?
A:
There is no specific time limit in relation to the use of CCTV footage in these specific
circumstances, but it is imperative that you carry out all investigations in a reasonable time
period without any undue delay. It is also worth bearing in mind that the longer the
disciplinary investigation and any subsequent hearing is from the incident, the more likely it
is that your employee’s recollections will not be as clear about the matters alleged. You
mention that this investigation is taking longer due to the illness of your IT specialist, but you
should consider if there is anyone else who can examine the material in a more timely
manner, or whether you are able to bring an independent expert into the business to
process the data for you. It is imperative that you do everything you can to expedite this
process as there is a heavy burden from any tribunal to account for a long delay.
You mention that your handbook does not state that CCTV evidence can be used for the
purposes of disciplinary proceedings; however, does your handbook suggest a nonexhaustive list of possible evidence sources? If your policy is this specific so as to exclude
CCTV, then you must consider why this is the case as this could clearly give employees an
argument to raise in their defence in relation to this item of evidence. In this circumstance,
you would have to justify that your use of the evidence was fair and proportionate by
carrying out an impact assessment on its admittance, considering whether the CCTV was
covert or not; and if not, why the employees were not aware of the operation of CCTV
monitoring. However, if your policy does not specifically exclude CCTV evidence and your
employees were aware that CCTV was in operation, then you should have no problem in
utilising the evidence available to you.
Q:
We are looking to introduce a lay-off clause to our contracts of employment, do we have
to enter into a consultation period with staff?
A:
As a lay-off clause is a contractual term, you would be required to consult with your staff if
you wished to implement this change to your contracts without your employees’ agreement.
Depending on the numbers involved and whether or not you intend to“force through” any
variation to the contract, you may be required to enter into collective consultation over the
proposed changes.
It is unlikely that you would get your employees’ agreement to this change without offering
them a “sweetener” to encourage their agreement. This may involve highlighting to them
that the purpose behind this clause is their job security, as you would only be utilising this
clause in order to prevent redundancies being made should you ever find yourself in a
position of a downturn in work. However, if you were unable to get their agreement, then
you would have to demonstrate sound business reasons for your proposal and follow a fair
process in order to dismiss them from their current terms and conditions, with the view of
re-engaging them under a new contract which includes your proposed lay-off clause within
it.
If you have a particular question that you would like answered email train.swa@btconnect.com
and we will publish next month – all names will be removed to ensure confidentiality or contact an
HR expert by accessing the 121 HR Solutions online chat facility right: