Disciplinary Procedures: Common Mistakes Made By Employers

When there are unfair dismissal claims, usually employment tribunals will take into account the “Acas code of practice on disciplinary and grievance procedures”, except when it occurs in Northern Ireland. However, this is only applicable when relevant and at the same time, this could increase the compensation of the employee by up to 25% but only if the employer illogically fails to follow the code.

There are a lot of reasons why employers choose to dismiss an employee. However, there are some dismissals that seem to be fair, this is because the employers are following their disciplinary procedure properly. On the other hand, there are also dismissals that even if the employers have handled them properly, they will become automatically unfair.

Nevertheless, in case the employer commits a mistake in managing dismissals and disciplinaries, then this can lead to a claim for unfair dismissal provided that you have worked for two consecutive years. Here we are going to take a look at some of the common mistakes that the employers have committed when dismissing staff and handling disciplinaries.

Failed To Follow The Disciplinary Policy

In case your employer specified a contractual disciplinary policy in your contract of employment but failed to follow this, then your employer will become liable of breach of contract.

If your employer is dismissing you without following a contractual disciplinary policy, then you can file a claim in a County Court or High Court for breach of contract or you can go to the Employment Tribunal and file a claim for unfair dismissal or wrongful dismissal. On the other hand, if you were dismissed before reaching two years of continuous service, then you are not allowed to make a claim for unfair dismissal, except if you are filing a claim for automatic dismissal. However, you are permitted to make a claim for breach of contract if the circumstance above applies to you.

There is a particular case that occurred in March 2014, wherein the Supreme Court made a ruling that there is a designated contractual right to a fair disciplinary process, a critical breach wherein an employee is able to acquire an injunction halting the employer from finishing the process without starting again.

This implied right was breached in the case of Chhabra Vs West London Mental Health NHS Trust. This is due to the fact that the conclusions made by the person who is doing the investigation were vastly changed by an HR Advisor. As a result, the alleged misconduct was incorrectly categorised as gross misconduct.  The Court acknowledged that although it is legal for the investigator to ask some advice from HR with regards to the procedure or to guarantee that the report is clear and includes all the essential things, however, the amendments should not be extensively done in this case.

In August 2015, particularly in the case of Townsend Vs Commercial Storage Ltd, an Employment Tribunal ruled that the employee was unfairly dismissed after being told by his employer that he should not bother returning back on Monday. This occurred when Mr Townsend, the driver of a  small family business, had an argument with his manager. Mr Townsend interpreted this comment as a dismissal, as a result, he left the workplace. The manager of the company, Mr Cooke, did not try to contact Mr Towsend after this and after a while, they sent him his P45. Mr Townsend alleged that there was unfair dismissal, however, the Employer insisted that he resigned and he was not dismissed. Mr Townsend became victorious in his unfair dismissal claim since the Tribunal ruled that there was a total failure in implementing any type of fair procedure.

Nevertheless, in 1974, particularly in the case of Futty Vs P & D Brekkes Ltd, the Tribunal ruled that no dismissal has occurred after Mr Futty’s foreman told him that if he does not like his job, then he should f**k off! Mr Futty, a fish filleter, took this literally and he left. Fortunately, he found another job, however, he still pursued in making a claim for unfair dismissal. Mr Futty’s fellow fish filleters provided proof with regards to the meaning of the foreman’s expression. After the Tribunal heard all their explanations, they concluded that the foreman’s words were merely just a typical exhortation to help him in getting on with the job. Therefore, there had been no dismissal.

Suspension

This pertains to suspending workers before having a disciplinary meeting with them.

Not giving any warning to the employee on any potential consequences of disciplinary action prior to the disciplinary meeting

The employer should let the employee know about the potential consequence of any form of disciplinary action, prior to the actual disciplinary meeting itself. This is done so that the employee has a fair chance of properly defending himself against any allegations. Therefore, it should not come as a surprise that there is a possibility that the employee could get dismissed from his employment.

Not setting out clearly the nature of the accusations to the employee

It is important that the employer should set out clearly the alleged misconduct committed by the employee. This should be done consistently throughout the disciplinary process so that the employee is well aware of what he is accused of. The employer should only impose a disciplinary punishment if it is associated with the allegations that have been properly investigated and have been recognised by the employee as part of the proceedings. A misconduct dismissal can only be fair if the employer has proven during the time of the dismissal that the employee is guilty of misconduct. Also, the employer believed that there are reasonable grounds for the dismissal after doing a thorough investigation into the matter.

There are actually no rules when it comes to the extent of the investigation that the employer needed to conduct pertaining to the employee’s alleged misconduct. However, this will depend on certain circumstances. Nevertheless, the investigation should be done before any disciplinary action. Although, it is fine if the investigation will continue even if the disciplinary process is still going on just in case more information will emerge that requires investigation. The following are some important points that should be considered when undertaking an investigation:

• Recognise the allegation that requires investigation.
• The officer conducting the investigation should have no prior involvement of the matter, if possible. They should have an open mind and do the investigation as quickly as possible.
• The witnesses, as well as the accused employee, should be interviewed, however, it is not necessary that all the witnesses must be interviewed in case a fact has been clearly established.
• Any records or notes pertaining to the investigation should be taken and kept. Witnesses should be asked if they consent to the notes that were taken and if they truly reflect that conversation. At the same time, witnesses should be reminded of their duty of confidentiality.
• An investigation report should be accomplished and it should include a summary of the evidence as well as any inconsistencies. However, there should not be any conclusions drawn from this report since this is the responsibility of the disciplinary panel. Nevertheless, the investigator can recommend whether the matter should advance to a disciplinary hearing or not.
• In October 2015, Acas created a guideline for Conducting Workplace Investigations.

Not providing the employee with the relevant evidence

The employer must give the employee all the evidence, generally, it could be in the form of witness statements or any other types of proof. The evidence should be given prior to the disciplinary hearing. It is ideal that the evidence should be provided to the employee once he receives an invitation to the hearing, or perhaps far more advanced so he/she can make preparation for a proper defence.

In August 2014, the Tribunal ruled that there was an unfair dismissal for the former BBC Head of Technology. Although the Tribunal revealed that the employee is partly to be blamed by the dismissal. However, the Tribunal said that they were surprised by how the BBC disregarded the standards of a fair disciplinary process. The following are the things that BBC disregarded:

• Prior discussions about the dismissal, as a predictable conclusion.
• Conducting interviews for replacements before the disciplinary process had started.
• Failure to conduct any investigation before the hearings.
• 16,000 documents were sent to the employee a day before the hearing.

Not providing lesser warnings where suitable

There are some cases wherein the alleged misconduct is extremely serious, also known as gross misconduct. When this happens, even if it is the first offence of the employee, a summary dismissal can still be justifiable. A summary dismissal refers to the dismissal that does not have any notice or notice pay. Nevertheless, in the case of minor misconduct, it would be more appropriate if a series of written warnings were sent to the employee.

There are actually no national guidelines in figuring out what gross misconduct is. Every employer differs when it comes to the attitudes that they do not want to tolerate at work. This will depend on the employer as well as the type of workplace and the nature of the work. Regardless of what action the employer considers as gross misconduct, the particular action should be serious enough that it can irrevocably harm the confidence and trust between the employee and the employer.

In September 2013, specifically in the case of Brito-Babapulle Vs Ealing Hospital NHS Trust, the Employment Appeal Tribunal ruled that when recognising the fairness of a dismissal, particularly, whether the choice to dismiss falls within the group of logical responses open to a reasonable employer. The Tribunal or the employer should not immediately look for gross misconduct and directly conclude that dismissal falls on the range of reasonable responses to the attitude. The employer must also consider any alleviating factors including the consequences of dismissal on the employee’s career, regular behaviour and conduct, length of service, exemplary service, any provocation, etc. Take note that a ruling of gross misconduct does not positively justify instant dismissal. All the other incidents should be taken into account first.

Warnings are provided in “bad faith”

If there is a certain warning provided, however, it was in “bad faith”, then it might not be safe if the employer simply relied on it. Later on, it will be used as the succeeding phase in a disciplinary process or as a component of a redundancy selection exercise. Perhaps you might think that the only thing that can resolve this issue is an appeal. However, what if the employee made an appeal against the initial decision and incidentally, the appeal was carried out in bad faith? Or maybe the employee was restricted from making an appeal?

In a particular case of Way Vs Spectrum Property Care Limited 2015, a final written warning was issued to Mr Way since he hired a relative without revealing this fact. As a result, he committed a breach of company fair recruitment procedures. Mr Brooks, Way’s manager, had given him a warning despite being aware of Mr Way’s consent with the recruitment and his association with the new starter. Mr Way desired to make an appeal, however, he was told that if he will, there is a greater risk that the incident could escalate leading to a dismissal. Later on, after several months, Mr Way sent improper e-mails, as a result, there was a breach in employer’s rules. Since the prior warning was still “live”, he was finally dismissed.

According to the Employment Appeal Tribunal and the Employment Tribunal, the decision to dismiss Way was fair. However, the Court of Appeal has a different opinion, they think that the Tribunal failed to take into account the “bad faith” argument. Because of this, the case was returned back to Tribunal. The court further added that if the disciplinary warning was given in bad faith, then it should not be taken into consideration most especially when deciding whether there is adequate reason for dismissing an employee.

So, how will you know if a warning is in “bad faith”?

• In case the employer is aware that the grounds for the warning don’t exist.
• In case the warning is due to a protected attribute based on the Equality Act.
• It is used in covering up someone else’s misconduct or inadequate performance.
• It is particularly given to ensure that the employee can be dismissed easily at a later date.
• There is a proof of pre-determination of guilt by the employer.
• The employee is being deceived when it comes to their right to appeal or not entitled to an appeal.

A warning can still be considered as being in good faith, despite if:

• There were procedural issues with the disciplinary method.
• The employer positively believes that there were grounds for the warning but these were inaccurate.
• The employee himself/herself believes that it was fair.
• The warning that was provided was at a higher level which the Tribunal themselves would have inflicted.

Hence, in case the employee asserts that an advance warning was provided in bad faith, then the disciplinary panel should take into account whether there are grounds to examine at the prior warning, specifically, if the current circumstance could result to a dismissal.

Using previous disciplinary warnings

Basically, prior warnings can still be taken into account in case they are considered as “live.” This means that they can still be found on the employee’s file and provided that the warning was provided in good faith. This is based on the Tribunal cases of Tyre Vs UK Mission Enterprise Ltd 2016 and Davies Vs Sandwell Metropolitan Borough Council 2013.

Prior warnings that have already expired should not be used as the major reason for dismissal. Nevertheless, prior warnings that have already expired and are used as an important part in the fairness of the new decision might be acknowledged, based on the Tribunal case of Airbus UK Ltd Vs Webb 2008, provided that they are not the primary reason for dismissal, according to the case of Diosynth Ltd Vs Thomson 2006.

In 2017, particularly, in the case of Stratford Vs Auto Trail VR Ltd, the Employment Appeal Tribunal ruled out that it is possible that an expired warning can be taken into account when deciding whether a dismissal was fair or unfair. Whenever the ultimate disciplinary offence was not in itself considered as gross misconduct. The reason behind this is that Stratford had a disturbing disciplinary record. The fact is, he committed 17 incidents in just less than 13 years. Additionally, the employer did not think that this would ever change.

In a recent decision of the Employment Appeal Tribunal on the case of Wincanton Group plc Vs Stone, the EAT claimed that the Acas Code of Practice does not require that there should be a connection between the first and the second misconduct. In case, there is an additional type of misconduct then it could lead to further disciplinary action. However, it is possible that Tribunals would consider the nature of the offence that resulted in the warning when making a decision if a dismissal was fair. Misconduct that was found to be similar could result in a more serious penalty while misconduct that was found to be dissimilar may result in a less harsh penalty.

In a particular case of Ham Vs The Governing Body of Beardwood Humanities College, at the latter part of 2015, the Employment Appeal Tribunal is considering whether a range of comparatively minor acts of misconduct could be aggregated so a fair dismissal can be permitted without any prior disciplinary warnings. In 2011, Ms Ham was dismissed on multiple grounds, however, the College felt that none of them was gross misconduct in their own right. The original Tribunal claimed that the dismissal was unfair. This is because the College totted up every act of misconduct providing justification to the dismissal based on the grounds of gross misconduct. The College made an appeal and the EAT claimed that the Tribunal had committed a mistake. They should have examined the conduct in its totality.

The case was taken back to the Tribunal for reconsideration, however, the Tribunal claimed that the decision that they made about the dismissal was fair. Ms Ham made an appeal expressing that the dismissal was unreasonable since she was never issued with any disciplinary warnings first. Nevertheless, the EAT disagreed with her and ruled out that the College had taken into account other alternatives to dismissal. They even considered issuing disciplinary warnings yet they felt that it was more appropriate to dismiss her, under the circumstances.

Not permitting the employee to be accompanied to a disciplinary hearing

Permitting employees to be accompanied at a disciplinary hearing is their statutory right. The right of the worker to be accompanied emerges when he/she is invited by his/her employer to attend a disciplinary or grievance hearing. The employee will make a reasonable request that he/she will be accompanied by a companion to attend the hearing. The companion could be a trade union representative or a fellow worker.

In 2013, the Employment Appeal Tribunal ruled out that in the case of Toal Vs GB Oils Ltd, workers who are exercising their statutory right to be accompanied at a disciplinary or grievance hearing are allowed to have someone present, regardless of whom they choose, as long as the person is a co-worker or a union representative. Employers cannot deny a certain companion due to the fact that their presence seems unreasonable. The requirement of being reasonable does not apply to the identification of the companion. This ruling is contradictory of the Acas Code of Practice, however, in 2015, Acas updated this ruling. Hence, an employee can now be accompanied by a fellow worker or trade union representative of their choice.

For breach of the right to be accompanied, the maximum compensation is two weeks pay. Take note that this is subject to the statutory weekly pay cap. In the particular case of Gnahoua Vs Abellio London Ltd 2017,  Gnahoua, a driver of a bus company was denied by his employer to be accompanied by either of his two brothers who were both union officials since they were prohibited from attending workplace meetings due to prior threatening conduct. According to the Employment Appeal Tribunal, even if the employee had not suffered any loss of detriment by not being accompanied by his chosen companion, he is still entitled to £2 compensation! Despite the fact that the disciplinary hearing had been handled in a comprehensive manner.

In August 2018, in the case of Talon Engineering Ltd v Mrs V Smith, the Employment Appeal Tribunal ruled out that Mrs Smith experienced an unfair dismissal when she described her co-worker as a “knob head” in numerous e-mails! Consequently, her employer did not agree in postponing her disciplinary hearing for the second time her union representative could not attend.

Since Mrs Smith was not feeling well, then her first disciplinary hearing was deferred, also she had booked a holiday. The hearing was rescheduled however her trade union rep failed to attend on that date. Unfortunately, Talon, her employer, does not want to postpone the hearing again. Even if Mrs Smith does not want to attend the hearing, yet Talon still proceeded with the hearing without her, as a result, she was dismissed without any prior notice. Although Mrs Smith made an appeal, yet it was not successful. The original Tribunal believed that no sensible employer would decide to dismiss her. And finally, she was successful in her claim. As a result, Talon Engineering made an appeal however the EAT believed that the decision of the tribunal was accurate when it stated that the company had made a hasty and designated decision.

There might be also certain circumstances wherein a qualified legal representative might be able to accompany the worker at a disciplinary hearing. But most often, this will occur when there is a need for a contractual right to legal representation, commonly, in regulated professions or if the result of the hearing could deny them the right to practice their profession.

Relying on evidence from one source/witness with no corroborative evidence

There might be some circumstances wherein one evidence is substantial enough to result in a disciplinary sanction, however, the employer should look for more. Employers should be aware of the problems of relying on one source of evidence. If possible, they should look for other corroborative evidence.

In the case that occurred in 2011, particularly Farnaud Vs Dr Hadwen Trust Ltd, Mr Farnaud, a director of Science and Education, had an intense argument with Mrs Eglington, his line manager. Because of this, Eglington decided to file a grievance against him. Because of this incident, Dr Farnaud was disciplined. Additionally, the director was guilty of threatening and aggressive behaviour, ultimately, he was dismissed due to gross misconduct.

According to the Employment Tribunal, Mr Farnaud was unfairly dismissed since the employer failed to conduct an interview, instead relied only on Mrs Eglington’s written grievance. Also, the employer did not interview the witness to the event, rather they only relied on Mrs Eglinton’s interview of that witness. Because of this, the  Tribunal ruled out that the Employer does not have any reason to believe that Mr Farnaud is guilty based on the grounds that they failed to conduct a complete investigation or disciplinary process.

Not giving a substantial appeal stage

Basically, the right of appeal can help in ensuring that there is natural justice. Therefore, employers should give their employees the chance to make an appeal once they have received the result of the disciplinary hearing. Appeals should not be biased and should not be a predictable conclusion.

In the case of Thomson v Imperial College Healthcare NHS Trust, which occurred in 2015, the Employment Appeal Tribunal concurred with the Tribunal that a dismissal can be considered as unfair in case the Disciplinary Panel Chair had no prior experience of disciplinary hearings and because of their inexperience, the claimant was denied of a fair hearing. The case involved a senior employee with serious allegations.  The employer disputed that disciplining a senior employee was a unique situation. It is expected that the Chair has no experience in handling this case. However, the EAT thought that in case a disciplinary process could lead to dismissal then to prevent the risk of a Tribunal deciding that the procedure is unfair, the employer could have provided training to the Chair right there and then with regards to handling the disciplinary process.

In case an employer wants to have the alternative to increase a disciplinary sanction on appeal, then it can only do so if this is explicitly indicated in the disciplinary policy, at the same time, the employee must be permitted to have a further right of appeal.

If someone has been dismissed and the appeal has not yet been heard, can an employer advertise for a replacement?

Yes, an employer can, however, it would be best if they should wait, in case the requirement for a replacement is not urgent. The reason behind this is that the employee would think that the outcome of the appeal was prejudged since the company is already recruiting a replacement for her/him. Additionally, if the appeal became successful and the worker was reinstated, then the employer needs to withdraw the job that they offer to the new person, as a result, this can lead to a breach of contract claim.

Not keeping adequate, clear records of the whole disciplinary process

So, what will happen if both the employer and employee do not consent with the minutes/notes of a grievance or hearing? The employer should give the employee a copy of the minutes/notes taken during the meeting. In case the employee does not agree that the notes are correct, then the employer should ask the employee for the accurate version.

In case the employer acknowledges that the employee’s version is correct, then the amendments can be recognised as the record. On the other hand, if the employer does not acknowledge that the employee’s version is correct, then both versions should be kept on record. Also, both versions of the minutes/notes can be used as a reference at a later date, including at tribunal.

Delays in dealing with disciplinary issues

Several cases should be dealt with in just a matter of weeks. However, if there are unexplained delays in the disciplinary proceedings, then most likely the tribunals will frown upon them. On the other hand, there are also challenging cases or more complicated cases which can take longer. For instance, those cases which involve criminal offence or fraud.

In the case of Williams Vs Leeds United Football Club, which happened in 2015, the High Court ruled out that there is actually no restriction on the length of time that can pass between the time that the employee committed gross misconduct and the time that the employee was dismissed without any prior notice, in case, during that time the employer is not aware employee’s wrongdoing.

Having the same person deal with the whole disciplinary process

One of the common failures in tribunal claims is the fact that the same person is in charge of the disciplinary process from the beginning up to its end. The ideal thing is that the disciplinary hearing, investigation and appeal stage should be carried out by different people. However, you will find that this is not actually practical, most especially for small companies.

There have been a lot of cases wherein the Tribunal would examine the suitability of using external HR consultants during the disciplinary process. This is usually applicable to those employers which have a smaller size and does not have enough staff that can handle the hearing for disciplinary and appeal, conducting an investigation as well as requiring professional advice etc. The Tribunals believe that this is acceptable provided that it is clear who will make the final decision to dismiss the case and the decisions should be made appropriately.