Stay on best behaviour with unfair dismissals

Employers face hefty fines for not following a proper disciplinary
procedure, so they need to get it right

When employers lose unfair dismissal cases arising from staff misconduct, it
is almost always because they did not follow proper disciplinary procedures.
Now employers know that the penalty for not following a disciplinary procedure
could be up to £50,000, taking time to get the dismissal right is much more

All disciplinary procedures should set out stages of potential sanction for
acts of misconduct. By using a 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.

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.

Right to be accompanied

Employees should be given the right to be accompanied at hearings as this is
a new statutory entitlement. A colleague or union representative, if
appropriate, can accompany 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.

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. Where an
employee has been denied a right of appeal it is more likely that the dismissal
will be deemed unfair.

As soon as an employer suspects that misconduct has taken place, he should
investigate it. The extent of the investigation will depend on the type of
alleged misconduct, the initial evidence against it and whether the employee
admits to the misconduct.

Where further investigation is needed, the employee should usually be
interviewed and, before the disciplinary hearing, be told of all the
allegations against them, along with details of all the evidence to support the

In complex investigations, a relatively senior employee will have to take
responsibility for obtaining evidence and interviewing the employee. And proper
consideration should be given to who undertakes an investigation in order to
leave two more senior people to hear the disciplinary meeting and any appeal.

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, extra care must be taken to ensure that the initial hearing was
conducted fairly. The employee should also have the chance to make submissions
to the disciplining officer if they believe there has been an error in the

Employer’s resources

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 therefore be expected to take more care over the key parts
of the procedure than a small one.

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 but it does give employers extra flexibility when
dealing with an area of law which changes frequently and carries heavy
penalties when employers make errors.

For employers without disciplinary procedures or which are concerned that
their procedures need updating, there is plenty of help. Acas produces model
disciplinary codes and the DTI publishes advice for small firms.

Joanna Blackburn is senior employment solicitor at Mischcon de Reya

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