Ten ways disciplinary procedures can go wrong for employers

There is nothing more frustrating for employers than discovering that an employee dismissed for blatant misconduct has an arguable claim for unfair dismissal. Katherine Pope identifies the top 10 examples of how disciplinary procedures can go wrong for employers.

1. HR involvement in decision-making

Managers carrying out disciplinary investigations and hearings will usually rely on guidance from HR as to policy and procedure, as well as previous disciplinary sanctions for the purposes of consistency.

However, HR involvement should not stray into assessments of the employee’s credibility or culpability.

In Ramphal v Department for Transport, a number of amendments were made to the investigating manager’s draft report and recommendations, following HR involvement.

The recommended sanction increased from a final written warning to summary dismissal for gross misconduct. This suggested that the disciplinary outcome had been improperly influenced by HR and was potentially unfair.

It is for the decision-making manager to decide if he or she is satisfied that the employee committed the misconduct and what the disciplinary outcome should be.

HR advisers should restrict their involvement to issues of law, policy and procedure, and should avoid giving advice on the appropriate sanction, other than to address issues of consistency.

2. Dismissing for a reason not covered by your disciplinary policy

Employers should ensure that their approach complies with all relevant policies, not just the disciplinary procedure.

Whistleblowing and grievance procedures, or policies covering activities outside the workplace, may also be relevant. Once an employer has decided what is acceptable conduct for employees and prepared policies accordingly, these need to be followed.

In McElroy v Cambridgeshire Community Services NHS Trust, an employee was dismissed for coming to work smelling of alcohol.

However, the employer’s substance misuse policy did not ban employees from drinking alcohol before work. Under the policy, the employer offered assistance and support for alcohol misuse, and stated that the disciplinary policy would be applied in cases of continued misuse, or where there was an adverse impact on performance.

The employment tribunal found that, as this threshold had not been reached, the dismissal was unfair.

On the other hand, employers must bear in mind that a dismissal will not necessarily be fair just because the act in question is listed in the employer’s disciplinary policy as an example of gross misconduct.

A fair procedure and consideration of any mitigating factors are still required and the tribunal will still consider if the decision to dismiss was fair in all the circumstances.

3. Relying on breach of implied contractual terms

Employees are obliged to disclose their own wrongdoing only if they owe a fiduciary duty to their employer, or if an obligation arises under their contract of employment.

In the absence of clear wording in the employment contract, it is probably unfair to dismiss an employee for failing to report his or her own misdeeds.

In The Basildon Academies v Amadi, the part-time employee took up a second job in breach of his employment contract. He was arrested following allegations of assault at the second job. His dismissal for failing to disclose these matters was unfair.

The employer could not show a contractual duty to report his alleged wrongdoing, and dismissal purely for taking up a second job was found to be too harsh.

This decision illustrates the danger of seeking to rely on implied terms. While it is possible to include an express contractual term that requires the disclosure of wrongdoing, this is more commonly seen in employment contracts for senior employees.

4. Dismissing for a reason not put to the employee at the outset

Employers must not be tempted to add further matters part of the way through the disciplinary process, unless a full procedure is followed for each allegation.

Alternatively, the employer could state clearly in the outcome letter that the additional allegations did not influence the decision to dismiss.

In Mbuyi v Newpark Childcare (Shepherds Bush) Ltd, the dismissal of a Christian employee who expressed views about a colleague’s homosexuality was found to be both unfair and discriminatory.

The dismissal was unfair because the employee was not given the detail of the allegations in advance of the disciplinary hearing.

Further, the employer reached conclusions and views about the employee based on allegations that were not put to her. The tribunal considered that these views were stereotypical assumptions based on the employee’s religious beliefs. Relying on these assumptions without investigation was enough to infer discrimination.

5. Over-reliance on earlier warnings

Previous warnings can be a minefield for employers. Other than in cases of gross misconduct, dismissal is likely to be unfair unless there is a live final written warning.

While the case law on this point is not clear cut, relying on a first written warning to tip the balance in favour of dismissal (rather than issuing a final written warning) can be risky.

On the other hand, where there is a live final written warning in place, an employer is generally able to rely on this as meaning that any further acts of misconduct will justify dismissal (although see pitfall 6).

The Court of Appeal has held that it is legitimate for an employer to rely on a final warning, provided that it was issued in good faith, there was at least some basis for imposing it and the warning was not manifestly inappropriate to have issued it.

Relying on an expired warning is extremely dangerous. In Bevan Ashford v Malin, a dismissal was found to be unfair where a warning was relied on that had expired one day before the second misconduct occurred.

Further, cases suggest that while expired warnings do not need to be discounted entirely, they cannot be used to tip the balance in favour of dismissal if the current misconduct is not sufficiently serious on its own.

6. Dismissing without considering other sanctions

Do not assume that a finding of gross misconduct automatically justifies summary dismissal.

A tribunal will expect to see evidence that the decision-maker has considered if this is the appropriate penalty in each case.

It is important to consider all the circumstances, including the penalty that has been applied in similar cases, the employee’s length of service and disciplinary record. Any mitigating circumstances should also be taken into account.

These might include the employee’s remorse for his actions as well as any personal circumstances that may be relevant.

For example, in the recent case of Burdett v Aviva Employment Services Ltd, a claimant who suffered from schizophrenia had assaulted colleagues.

The EAT found that it was an error of law for the tribunal to accept that dismissal was automatically within the range of reasonable responses without considering mitigation.

7. Muddling investigatory and disciplinary meetings

If an employee owns up to misconduct during an investigatory meeting, you may be tempted to move straight to a disciplinary sanction. This should be avoided.

There may still be issues that need to be investigated; for example, if the employee alleges that the conduct in question is widespread or condoned by their manager.

Further, the procedural requirements that apply to a disciplinary meeting will not have been followed, meaning that any dismissal is also likely to breach the Acas code of practice on disciplinary and grievance procedures.

Keep a record of the employee’s admission and, once the investigation is complete, convene a separate disciplinary hearing. As usual, the employee should be given time to prepare for the disciplinary hearing and a chance to make representations.

There may be mitigating factors to take into account, and the tribunal will still expect the employer to have acted reasonably and to have considered these.

8. Dismissing without any process during the probationary period

Given that employees who are still under probation have short notice periods and are unable to claim ordinary unfair dismissal, some employers may choose to dismiss without following any procedure during this time.

However, it is important to remember that there is no service requirement for claims of automatically unfair dismissal; for example, dismissal for whistleblowing or for a health and safety reason.

All workers and job applicants are also protected under discrimination law regardless of length of service. Employers should therefore consider if any such issues might arise before moving straight to dismissal.

9. Increasing sanction to dismissal on appeal

Employers sometimes consider increasing a final written warning to dismissal as part of the appeal process.

This might be because the appeal manager takes a different view as to the severity of the misconduct, or because further information comes to light.

Increasing the penalty in this way can be risky. It is important to ensure that such a step is permissible under the employer’s own disciplinary policy.

Employers should bear in mind that such a step is contrary to the Acas code, which expressly states that appeal should not result in an increased sanction (as this may deter individuals from appealing).

If the penalty is increased, it is advisable to offer a second appeal against the new sanction.

In McMillan v Airedale NHS Foundation Trust, the employer sought to increase a final written warning to dismissal on appeal. Its policy did not expressly allow disciplinary sanctions to be increased on appeal. As the disciplinary policy was contractual, the employee was granted an injunction to prevent dismissal.

10. Choosing an inappropriate decision-maker

The Acas code provides that, where possible, different people should conduct the investigation and the hearing and then a further person for any appeal.

The appeal should ideally be heard by someone senior to the original decision-maker and from a different reporting line. This can be a particular problem for small employers, where finding separate decision-makers for the initial hearing and appeal stage can be tricky.

Thankfully, this is an area where case law does allow employers some leniency.

For example, in Adeshina v St George’s University Hospitals NHS Foundation Trust, the EAT found that specific circumstances must be considered when assessing if the appeal decision-maker is inappropriate.

In that case, there was an appeal panel, so the fact that one member was junior to the original decision maker was not a fatal flaw.

And finally, don’t forget…

With so many potential pitfalls, employers may wonder how a dismissal is ever fair. There are, however, two things to bear in mind.

First, while procedure is important, tribunals retain a degree of pragmatism. Employers do not need to be perfect. As the Adeshina case demonstrates, what they must be is reasonable and above all fair.

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Second, while a procedural flaw may result in a technical finding of unfair dismissal, it is still open to the employment tribunal to reduce the compensation awarded, either to reflect the employee’s culpability for his or her own dismissal (contributory fault) or because the procedural errors made no difference to the overall outcome (a Polkey reduction).

That said, it is better to avoid these pitfalls, if only to prevent the waste of time and cost of an employment tribunal.