The Disciplinary Procedure: How to do it correctly…

The disciplinary process - claims to avoid…

• 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 PerformanceKey Steps1. Undertake a reasonable investigation 2. Notify the employee of the issues in writing3. Invite the employee to attend at a disciplinary

meeting (remember the employee’s right to be accompanied)

4. Consider all the evidence prior to reaching a decision

5. Inform the employee of the decision in writing6. Offer the right of appeal

10 Common Pitfalls for Employers

1. Do not delay in dealing with disciplinary issues2. Warn the employee at the outset of the possible consequences of

the disciplinary action, the allegations and provide copies of the relevant evidence

3. Uncooperative witnesses?4. Whoever investigates should be different to the person hearing the

disciplinary meeting

10 Common Pitfalls for Employers

5. Allow the employee to be accompanied at a disciplinary hearing

6. Maintain clear records of the whole disciplinary process

7. Employee raises a grievance8. 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 MasonSolicitorDDI: 01564 334612E: ben.mason@schofieldandassociates.co.uk

Milverton Villas6 Wilsons RoadKnowle, SolihullWest MidlandsB93 0HZwww.schofieldandassociates.co.uk