Mon 29 June, 2020
Most people are likely to agree an employee deserves to be punished if they do something wrong - but is it how disciplinary action should really work?
The disciplinary procedure is the formal way to investigate and address any allegation of improper behaviour or employee misconduct.
In some cases it can lead to a formal warning being issued, and in the most serious cases it can result in dismissal.
There is a general feeling that any proven act of misconduct, no matter how serious, should be punished.
However, the purpose of disciplinary action should be to correct, not to punish, work related behaviour. There are of course cases in which the issuing of a formal warning or dismissal will be appropriate.
The extensive guidance with the ACAS Code of Practice does state: The procedure should be used primarily to help and encourage employees to improve rather than just as a way of imposing punishment. It provides a method of dealing with any apparent shortcomings in conduct or performance and can help an employee to become effective again. The procedure should be fair, effective, and consistently applied (1)
Even in cases where gross misconduct is considered proven, employers should always give careful consideration as to if dismissal is within a band of reasonable responses.
Gross misconduct is behaviour, on the part of an employee, which is so bad that it destroys the employer/employee relationship, and merits instant dismissal without notice or pay in lieu of notice (2).
Typical acts of gross misconduct include fraud, physical violence, serious lack of care to duties or other people (‘gross negligence’) or discriminatory behaviour.
Mitigating factors - any factors that might explain or defend an employee’s behaviour, or that may have contributed in the individual acting in the manner they did – can in fact mean that a sanction of dismissal is not reasonable (3).
That mitigation can include: the employee’s length of service and disciplinary record; any remorse shown by the individual; is the behaviour out of character; any provocation; and the effect of dismissal on the particular employee.
In Brito-Babapulle v Ealing Hospital NHS Trust the Employment Appeal Tribunal found that dismissal for gross misconduct was not within the range of reasonable responses, as mitigating factors meant the sanction of dismissal was not in fact reasonable (4).
The employee was a consultant haematologist and had been on long-term sick leave from the NHS Trust but continued to treat private patients, which her employer insisted she should not have been doing.
Employers are advised that prior to starting the disciplinary procedure consideration should be given as to whether the problem can be resolved in an informal way.
It can sometimes be the swift and hassle-free solution to a work-related matter.
Dealing with a disciplinary matter informally can include simply having an open and frank conversation with the employee and any other member of staff involved.
In some situations this can be an effective and successful approach and often be enough to resolve a matter.
If an informal approach does not address the issue and an employer wishes to start a disciplinary procedure, it must tell the employee straight away.
The employee should be notified in writing and provided with sufficient information about the alleged misconduct to enable them to prepare to respond to any allegation. They should also be informed of the possible consequences, for example a written warning or dismissal.
It is essential that an employer follows a full and fair procedure throughout. A failure to do so can lead to an employee, with two years’ continuous service or more, submitting a claim to an employment tribunal for unfair dismissal.
Unfair dismissal is when an employment contract is terminated and an employer did not have fair reason to do so (5).
An employer may have its own specific disciplinary policy, but the ACAS Code of Practice on disciplinary and grievance procedures is the minimum a workplace must follow.
Although the Code is not the law, if a disciplinary case reaches an employment tribunal, judges will take into consideration whether the employer has followed it in a fair way.
(1) The ACAS Code of Practice [Internet] www.archive.acas.org.uk [Cited 29/06/2020] https://archive.acas.org.uk/media/1043/Discipline-and-grievances-at-work-The-Acas-guide/pdf/DG_Guide_Feb_2019.pdf
(2) What is an Gross Misconduct? [Internet] www.lawdonut.co.uk [Cited 29/06/2020] https://www.lawdonut.co.uk/business/employment-law/discipline-and-grievance/gross-misconduct-faqs
(3) What is Mitigating factors? [Internet] www.employeemanagement.co.uk [Cited 29/06/2020] https://employeemanagement.co.uk/disciplinary-mitigating-factors-unfair-dismissal/
(4) Dismissed for gross misconduct [Internet] www.personneltoday.com [Cited 29/06/2020] https://www.personneltoday.com/hr/gross-misconduct-dismissal-always-right-penalty/
(5) What is an Unfair Dismissal? [Internet] www.castleassociates.org.uk [Cited 29/06/2020] https://castleassociates.org.uk/support-centre/what-unfair-dismissal
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