Best behaviour

Given that the penalty for not following a proper disciplinary procedure
could be as much as £50,000, employers need to get the dismissal right. Joanna
Blackburn sets out what such a policy should cover

When employers lose unfair dismissal cases arising from staff misconduct, it
is almost always because they did not follow proper disciplinary procedures.
This means most unfair dismissal findings could have been avoided, a reminder
of how important it is to have and follow an effective disciplinary procedure
where an employee’s conduct at work falls below required standards. When
employers consider that the penalty for not following a disciplinary procedure
could be up to £50,000, taking time to get the dismissal right will become more
important.

Features of a disciplinary procedure

All disciplinary procedures should set out stages of potential sanction for
acts of misconduct. Minor misdemeanours are normally dealt with by way of a
verbal warning, but repetition of similar misconduct may lead to further action
being taken in the form of written warnings and ultimately dismissal. By using
this stepped route through a disciplinary procedure, an employee may eventually
be dismissed for a relatively minor type of misconduct, such as persistently
arriving at work late.

The procedure should also allow for circumstances where the misconduct is
more serious and a higher level of sanction than a verbal warning is
appropriate at an early stage. For example, where an employee has taken time
off work without proper authorisation, an employer may determine that the
matter is so serious as to warrant an immediate final written warning. To
provide flexibility as to the stage of discipline that an employer initiates,
the disciplinary procedure should state that it can be commenced at any stage,
up to and including summary dismissal in instances of gross misconduct.

Should a disciplinary procedure state which actions constitute gross
misconduct? There is no harm in giving examples of actions that may be gross
mis- conduct, but you should expressly state that the list is not exhaustive.
Also, committing one of the offences should not automatically lead to dismissal
– an employer should judge each case on its merits and be prepared to consider
compelling arguments in mitigation of a particular offence.

Sometimes, issuing warnings or dismissal are not appropriate sanctions for a
particular type of misconduct, although they tend to be the most common in
disciplinary procedures. It may be worthwhile giving other options,
particularly as alternatives to a final written warning or dismissal.

For example, in certain cases, a demotion may be an appropriate alternative
to dismissal. Equally, some cases may be best dealt with by a short suspension
without pay. If it is likely that you will want to exploit the opportunity to
use alternative disciplinary sanctions, your procedure should state what those
sanctions are and when they may be used.

Employees should be given the right to be accompanied at disciplinary
hearings as this is a new statutory entitlement. A colleague or trade union re-
presentative, if appropriate, can accompany the employee. It does not matter
whether the employer recognises a particular union; if the employee belongs to
the union, he will be entitled to be accompanied by the union representative in
the disciplinary hearing.

Employees are not entitled to bring a lawyer, however. If an employee does
bring a companion, the companion can address the hearing and liaise with the
employee but cannot answer questions on behalf of the employee.

Employers will also have to be flexible about when a disciplinary hearing
takes place to allow accompaniment by the employee’s chosen companion. An
employee can ask for a disciplinary hearing to be suspended for up to five days
if his chosen representative is not able to attend a scheduled hearing.

Breach of the statutory rules on accompaniment at hearings can lead to a
claim being brought in the employment tribunal. Damages awarded can be up to
two weeks’ pay. This is not a significant financial penalty in itself but
breach of this rule is likely to lead to any dismissal founded on the
disciplinary hearing being deemed to be procedurally unfair.

Employees should also be given the opportunity to appeal against
disciplinary sanctions. It is advisable to have a right of appeal after each
stage of the disciplinary procedure. This ensures that an employee has the
right to have any warnings or other sanctions independently reviewed by a second
person. Indeed, if an employee is denied a right of appeal against a decision
to dismiss, the employment tribunal can award a further sum of two weeks’ pay
to the employee as a sanction against the employer. Again, where an employee
has been denied a right of appeal in a dismissal case it is more likely that
the dismissal will be found to be unfair.

Who should hear a disciplinary meeting?

When an employer first suspects that misconduct may have taken place, he
should first investigate the alleged misconduct. The extent to which an
employer needs to carry out an investigation will depend on the type of alleged
misconduct, the initial evidence against the employee and whether the employee
admits to the misconduct.

At the most basic level, if an employee is seen to have clocked into work
late, there will be no need to carry out further investigation before
determining that the employee may be subject to disciplinary procedures. This
is not to say the employee should necessarily receive a disciplinary warning.
After all, the disciplinary hearing may unearth mitigating circumstances that
explain why the employee was late for work.

Where further investigation is needed, the employee should usually be
interviewed and, before the disciplinary hearing, should be given notice of all
the allegations against him, along with details of all the evidence the
employer has to support those allegations.

Inevitably in complex investigations, a relatively senior employee will have
to take responsibility for obtaining evidence and interviewing the employee to
be disciplined. Ideally, that investigating employee would not go on to chair a
disciplinary hearing.

The reason for this can best be demonstrated by considering a similar
scenario in criminal circumstances. The police may investigate a crime, collate
evidence and believe an individual should be charged. But the individual would
not consider they had a fair trial if the judge was the same policeman who had
decided he should be tried for the crime. In short, the investigator should not
also be the judge.

In some cases, this is impossible to avoid. It will happen particularly in
small companies or where the individual being disciplined is extremely senior.
In most organisations, however, proper consideration should be given to who
should be undertaking any investigation in order to leave two more senior
people to hear the disciplinary meeting and any appeal respectively.

Where possible, an appeal should be heard by someone more senior than the
employee hearing the original disciplinary meeting. Where the managing director
has made the disciplinary decision, the appeal should be either to the chairman
of the board or, if there is no chairman, the remainder of the board except the
managing director.

Again, in some very small companies or where very senior people are being
disciplined, it may not be possible to hold an effective appeal. In those
circumstances, the difficulties should be explained to the employee being
disciplined and extra care should be taken to ensure that the initial hearing
was conducted fairly. The disciplined employee should also have the chance to
make submissions to the disciplining officer if he or she believes there has
been a manifest error in the disciplinary decision.

Tribunals have the power to consider whether a dismissal was procedurally
fair by taking into account the size and admin resources of the employer. A
large employer will be expected to take more care to ensure that the role of
the investigator, disciplining officer and appeals officer are separate and
that at each stage a more senior employee reviews the decisions of his juniors.

Contractual or non-contractual

Section 1 of the Employment Rights Act 1996 requires employers to inform
staff in writing of where they can find disciplinary rules applicable to their
employment. It is not an obligation to have a written disciplinary procedure
but this tends to encourage employers to introduce one. Disciplinary procedures
will often be included in or appended to a contract of employment unless the
contract states otherwise; the procedures will then have contractual force.

There are two major drawbacks, however, to having contractual disciplinary
procedures. First, revising and amending the disciplinary procedure to account
for changes in the case law applicable to unfair dismissal may amount to a
variation of contract. This may inhibit the employer making prudent changes to
the procedure.

Second, where a disciplinary procedure is contractual, an employee has the
right to have the disciplinary procedure applied where he is accused of
misconduct. This can be costly to employers. For example, where an employee is
in the first year of his employment, he has no right to bring a claim of unfair
dismissal.

If the employer has conduct problems with the employee, he may choose to
dismiss them on notice on the basis that the employee has no legal recourse
arising out of that dismissal. But if the employer does not follow a
contractual disciplinary procedure in effecting that dismissal, the employer
may be liable for breach of contract. The employee can bring proceedings in the
employment tribunal to require payment of a sum equal to his salary for the
period it would have taken the employer to follow his proper disciplinary procedures.
In some cases, where disciplinary procedures are complex, this may amount to
more than a month’s pay.

Accordingly, it is advisable for disciplinary procedures to be stated to be
non-contractual. This does not mean that staff do not have to abide by disciplinary
sanctions – after all, an employer still has the right to expect his staff to
behave appropriately in the workplace. But it does give employers extra
flexibility, which is all-important when dealing with an area of law which
changes frequently and carries heavy penalties when employers make errors.

For employers that do not have disciplinary procedures or are concerned that
their procedures need updating, there is plenty of help at hand. Acas produces
model disciplinary codes and the DTI publishes advice for small employers.
While prudent employers will still seek legal advice before dismissing staff,
there is supplemental low-cost advice available from government sources.

Joanna Blackburn is senior employment solicitor at Mishcon de Reya

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