Emma
Grace, partner in the employment department at Nelson & Co. in Leeds,
highlights the importance of getting disciplinary procedures right and ensuring
that employees receive a fair hearing.
Most
employers think hard before taking disciplinary action, which may ultimately
lead to the dismissal of an employee. But, they may not give a single thought
to earlier stages in the process, where only a verbal or written warning is
given.
In
particular, employers may overlook the correct procedures, simply handing out a
warning in the early stages and putting it on the file, bypassing a full
disciplinary hearing. What they are not realising is that they may be building
a case against themselves, which employees can rely on at a tribunal.
In
a recent case conducted for an employer by Nelson & Co, Leeds, an employee
had been given both a verbal and a written warning for his conduct. Eventually,
his behaviour led to dismissal. Given the Acas guidelines and the previous warnings
the employers had given, most people would consider the employer had behaved
fairly. However, the employee had been summoned to an investigatory hearing,
but the directors decided to discipline him after this, without a formal
hearing.
The
tribunal said the informality of the process contributed to the unfairness of
the dismissal (where there was also no formal hearing), because the employee
had not been put fully on notice about the consequences of his actions.
The
tribunal considered that if the employee had been disciplined properly before,
he may not have repeated the conduct and therefore would not have been
dismissed. The employers lost the case on procedure only (albeit with a large
reduction to the employee’s award as a result of his behaviour).
It
is, therefore, vital to get the procedures right, even in the early stages of
the disciplinary process, to avoid unfair dismissal later down the line.
So
how can an employer ensure a fair dismissal?
1.
Fair investigation. You must
investigate any potential disciplinary matter as fully as possible. This means
speaking to the employee and to any potential witnesses, including, where
possible, staff and management.
2.
Disciplinary hearing. You must hold
a formal disciplinary hearing. The employee must have notice of this hearing (I
recommend at least a few days) and preferably be invited in writing. The
employee must be told what is to be discussed (if several incidents are to be
raised, they must all be explicit in the letter). They should also be told they
are entitled to have a representative present with them – a colleague, or a
union representative, if appropriate. Any evidence or statements to be used
should be provided to the employee at this time.
3.
Representation. The employee should
be informed of his/her right to choose a representative. If they are
unavailable, you must adjourn for a maximum of five days to allow the chosen
person to attend. Also, the employee must have the time to consult the representative
and both should be paid (reasonable time only – clearly several days would not
be reasonable).
4.
Fairness. The hearing must be fair
and allow the employee to put forward their case. This can include calling
witnesses. If the employee brings up something new, which needs looking into,
it is important to adjourn and do this.
5.
Outcome. The decision must be made
after the hearing, which can either be adjourned and the employee called back
for the decision, or the employee is written to at a later date. Either way,
the outcome should be recorded in a letter, making it very clear to the
employee what the employee has done wrong, and what he/she needs to do in the
future. Even an oral warning should be recorded in a letter and on the file,
since it is important to have a record of the warning being given.
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6.
Appeals. Failing to provide an
employee with a right of appeal could, according to recent case-law, result in
a decision being unfair. The employee should be informed of his/her right in the
letter confirming the decision, and how to exercise it. Smaller companies in
particular should give thought to the appeal at the beginning. If possible,
ensure that one person is kept away from the disciplinary process so they can
conduct the appeal. In companies with only one director, where there is no-one
to appeal to, it would be better not to have a right to appeal. Having a right
to appeal, which is impossible to exercise can be held to have prevented the
appeal, and a financial penalty awarded on this point alone.
All
too often, employers only give serious thought to the disciplinary process when
it reaches dismissal stage. This can leave them open to criticism and possibly
unfair dismissal decisions. Employers must ensure that they take any disciplinary
decisions as seriously as they would an appeal, if they are to protect
themselves against potential compensation claims at a later stage.
