Common mistakes made by employers handling disciplinaries

Employees who have committed acts of misconduct, or are suspected of having done so, are one of the most common (and often the most difficult) issues that employers are faced with. Employees with over two years' service have the right not to be unfairly dismissed.

In determining whether a dismissal is fair, there are two main elements which an Employment Tribunal must be satisfied are present:

1. the dismissal was for a potentially fair reason under Section 96 of the Employment Rights Act. Misconduct is one of the potentially fair reasons for dismissal

2. the dismissal was substantively fair. This means that the employer has gone through a fair procedure in the circumstances before dismissing the employee.

Correctly handling the disciplinary procedure can mean the difference between a fair and an unfair dismissal. As a starting point, having a disciplinary policy in place and applying it consistently can ensure that the correct procedures are followed. Policies can also set out the standards which are required of staff, meaning that employers can identify when employees have fallen below the standard that is expected of them and act accordingly.

The Advisory, Conciliation and Arbitration Service (ACAS) Code of Practice on Disciplinary and Grievance Procedures (which is available via the ACAS website) provides guidance to employers on handling these issues in the workplace and is a useful reference point in following a fair procedure.

Failure to follow the code in itself will not render a dismissal unfair but can result in an uplift of up to 25% on the compensation awarded by an Employment Tribunal in an unfair dismissal.

A fair disciplinary procedure should involve 3 stages:

1. an appropriate investigation into the allegation
2. a disciplinary hearing at which the employee has the right to be accompanied
3. affording the employee a right of appeal.

When advising on disciplinary issues, there are common pitfalls which we often see employers falling into which can easily be avoided.

The invitation

The ACAS guide states that an employer should hold a disciplinary meeting without undue delay whilst allowing the employee reasonable time to prepare their case.

The invitation to the disciplinary should provide sufficient notice of the meeting, in order to allow the employee a chance to consider the allegations against them, prepare their response and arrange for a companion to accompany them at the meeting. We normally recommend 3 to 5 days' notice of the disciplinary hearing.

The disciplinary invitation must also warn the employee of the potential outcome of the hearing, whether this be a warning or dismissal. It is always open to the employer to impose a lesser sanction if considered appropriate based on what is said at the meeting.

Workers have the statutory right to be accompanied at meetings by a trade union official (or representative who is certified to accompany a worker) or a colleague where the meeting might result in a formal warning, some other disciplinary action or at an appeal hearing.

The companion should be allowed to address the hearing to put forward and sum up the worker's case, respond on behalf of the worker to any views expressed at the meeting and confer with the worker during the hearing. The companion does not, however, have the right to answer questions on the worker's behalf, address the hearing if the worker does not wish it or prevent the employer from explaining their case. The Disciplinary Officer should be mindful of the companion's role and not let them set the agenda for the meeting or start speaking to the exclusion of the employee.

“When advising on disciplinary issues, there are common pitfalls which we often see employers falling into which can easily be avoided.”

The disciplinary hearing

At the hearing, a note-taker should be present to take accurate minutes of the meeting. The minutes should reflect the actual length of the meeting and what is discussed. Whilst the minutes don't need to be verbatim, the note taker should not be overly selective in what they write down either. A few lines for a hearing which took over an hour will not be sufficient.

For convenience, most mobile phones now have the capability to make voice recordings and the parties might agree to record the meeting and prepare a transcript afterwards.

Whilst many employers like to jot down key questions they want to ask, sticking to a script often means that the Disciplinary Officer is not actively listening to the employee's responses or representations. Any questions which are prepared in advance should serve only as a guide for the key points to be covered and should not exclude the exploration of further issues which may be relevant. If any evidence is being used, the Disciplinary Officer should remember to refer to this when relevant and give the employee a chance to respond.

Communicating the decision

After the hearing, the Disciplinary Officer should take time to consider all of the evidence and any representations made by the employee. Sufficient time should be factored in for this, in order to allow consideration of all of the facts and circumstances of the case. In some cases, this might mean following up with a decision in writing in the days following the hearing. In more straightforward cases, a few hours might allow sufficient time for consideration.

It is good practice to detail in the outcome letter any mitigation that was considered when deciding on the appropriate sanction as this will demonstrate that all of the relevant information was taken into account.

Handling each stage of the disciplinary procedure with care and attention will minimise the risk of a successful unfair dismissal claim against the employer. If any defects in the procedure are identified, it might be possible to rectify these at the appeal stage.

Employers with any specific concerns should contact our employment law advisers for further advice.