14th February 2017
Some employers are reluctant to address problems with employees and put up with unacceptable conduct or substandard performance, sometimes for many years, until the employee resigns and solves the problem by default. However, it is possible to deal with such matters fairly, without risking costly employment tribunal claims.
In an unfair dismissal case, the employment tribunal will consider if the employer’s decision was reasonable and whether it followed a fair procedure. It must take account of any relevant provisions in the ACAS Code of Practice on Disciplinary and Grievance Procedures. The ACAS code is intended to help employers and employees deal effectively with misconduct and poor performance and sets out the steps to be followed. If the employer or employee unreasonably fails to follow the ACAS code, compensation can be increased or reduced by up to 25 per cent. If you fail to follow your own disciplinary procedure, the tribunal can take that into account in deciding if any dismissal was unfair. The employee could also claim for breach of contract, if the procedure is part of his contract of employment.
You should first consider whether you need to take formal action under your disciplinary procedure. For minor offences, such as poor timekeeping, it will often be better to speak to the employee informally and resolve the problem quickly. For more serious matters or where the informal approach does not work, you should consider taking formal action.
You must carry out a reasonable investigation, which will usually involve interviewing the employee and other witnesses and collecting any documentary evidence. You should not take disciplinary action after an investigatory meeting and there should always be a disciplinary hearing first. In serious cases, you may want to suspend the employee while the investigation takes place. This must be on full pay so that the suspension is not itself a disciplinary action. It should be as brief as possible and should be kept under review. You should only suspend where there is a real risk of the employee committing a further offence or it is not possible to investigate the allegation with the employee at work. In all cases, a risk assessment should be carried out before the employee is suspended.
Before the disciplinary hearing, the employee must be informed in writing of the case against him, told what the possible consequences will be and given copies of any evidence, such as statements made by witnesses, so that he can prepare properly for the hearing. The letter should set out the date, time and location of the hearing and explain that the employee has the right to be accompanied by a colleague or a trade union representative. The hearing should not be conducted by the person who carried out the investigation and a second person should attend to take notes and act as a witness.
At the hearing, you should explain the allegations and go through the evidence. The employee should then answer the allegations and put his own case. He should have an opportunity to ask questions, present evidence and call witnesses. If new evidence comes to light during the hearing, you should adjourn it while you carry out further investigations. It is crucial to keep a written record of all meetings and the reasons why decisions were made in case this is needed later.
Following the hearing, you should take some time to consider what the employee has said, whether the allegations should be upheld and what the appropriate sanction should be. In deciding on the penalty, you should take into account:
If you are considering dismissal, you should also think about alternatives such as demotion, redeployment or a final written warning. You should write to tell the employee your decision and the reasons for it. If you are giving a formal warning, you should state what improvement is required and the timescale, as well as how long it will stay in force. Your letter must set out the employee’s right to appeal, the deadline and should ask the employee to set out the grounds for his appeal in writing.
The appeal hearing must be held promptly and, if possible, should be conducted by a manager who has not already been involved in the matter and who is more senior than the disciplining manager. He can overturn the original decision if he disagrees with it.
If you do not have a fair reason for dismissal, such as poor conduct or performance, or if you fail to follow a fair procedure or if you do not act fairly and reasonably, you could be faced with a claim for unfair dismissal for which compensation will be payable. If you do not comply with an employee’s contract, including any notice period, the employee may also have a claim for breach of contract or wrongful dismissal. More seriously perhaps, you will not be able to rely on any continuing provisions in the contract, such as a confidential information clause or restrictive covenants. If the employee is able to show that you discriminated against him in taking disciplinary action, compensation is unlimited.
Following these guidelines should enable you to tackle problems among your workforce before they escalate. If you need any advice with regard to a disciplinary issue, please contact Sarah Everton at Myers & Co Solicitors in Staffordshire on 01782 525012 or email firstname.lastname@example.org.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.