Mon 18 March, 2019
For an employer working its way through the disciplinary process can be like having to navigate a minefield.
A decision to dismiss an employee for any reason is not one that should ever be taken lightly, or without good justification.
It can be a nightmare for an employer to later discover that a former employee has a legitimate claim for unfair dismissal.
In order to make a successful claim in such circumstances a former employee will have to show:(1)
- They were an employee with the correct qualifying service.
- The employer did not have a valid reason to justify the dismissal.
- The employer acted unreasonably in the circumstances.
There are a number of other factors the employment tribunal will consider, which will include if the employer has acted in a discriminatory manner.
Employees dismissed after a disciplinary hearing they believe is unjust most commonly cite that the decision was unfair or correct procedures and processes were not followed, when submitting claims to an employment tribunal.
Previous figures from the Ministry of Justice (MoJ) for October to December 2017 revealed ‘unfair dismissal’ was the most common complaint in claims submitted.
The most recent MoJ quarterly statistics for October to December, 2018, show single employment tribunal claims – receipts, disposals and caseload outstanding all increased, by 23 per cent, 30 per cent and 53 per cent respectively, compared to the previous year.(2)
Getting it wrong at a disciplinary hearing can prove costly. From 6 April, 2019, the highest unfair basic dismissal award will be £15,750 and the new maximum unfair dismissal compensatory award will be £86,444.(3)
Here we take a look at five common pitfalls to avoid at a disciplinary hearing:
Not giving the employee the relevant evidence before the disciplinary hearing
The employee should be provided with all of the evidence such as witness statements or relevant documentation prior to the hearing.
This helps to ensure that the employee is given reasonable time to consider the evidence and to fully prepare a response.
Using expired disciplinary warnings
If an employee has a previous disciplinary warning that has expired it should not normally be taken into account, and be fundamental in a decision to dismiss.
In 2017, in Stratford v Auto Trail VR Ltd (4) the Employment Appeal Tribunal held that an expired warning could be taken into account, but only in exceptional circumstances.
Failing to consider sanctions other than dismissal
Even in cases where gross misconduct is considered proven dismissal should not be an automatic sanction. Any mitigating factors and if they warrant a lesser sanction should be carefully considered.
Mitigation can include the employee’s personal circumstances, length of service, any remorse shown and disciplinary record. A tribunal will expect to see evidence that the disciplinary hearing chair has considered if dismissal is the appropriate penalty in each case.
Adding allegations without following a full procedure
New allegations may come to light during the disciplinary hearing and any temptation just to add them to the existing ones should be avoided.
A full and fair procedure should be followed for each allegation. It should be made clear in the decision letter that any fresh allegations that came to light during the process did not influence the outcome.
Dismissing an employee without following a fair process.
This can result in a finding of unfair dismissal even if the original reason for dismissal was sound.
The ACAS Code of Practice provides statutory guidance that all employers are encouraged to follow.(5) Employment Tribunals are legally required to take the Code into account in relevant cases.
This means that if an employer unreasonably fails to follow the guidance set out in the code, a tribunal can increase any award by up to 25 per cent.
Employers should always ensure that a disciplinary hearing is fair and reasonable and that it complies with all relevant policies, not just the disciplinary procedure.
1. Unfair dismissal [Internet] Castle Associates [Cited 18.3.19] http://castleassociates.org.uk/support-centre/unfair-dismissal
2. MoJ quarterly statistics for October to December, 2018 [Internet] GOV.UK [Cited 18.3.19]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/785695/Tribunal_and_GRC_statistics_Q3_201819.pdf
3. Highest unfair dismissal award [Internet] CIPD [Cited 18.3.19] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/785695/Tribunal_and_GRC_statistics_Q3_201819.pdf
4. Stratford v Auto Trail VR Ltd [Internet] Gov.uk [Cited 18.3.19] https://www.gov.uk/employment-appeal-tribunal-decisions/mr-j-p-stratford-v-auto-trail-vr-ltd-ukeat-0116-16-joj
5. ACAS code of practice [Internet] ACAS [Cited 18.3.19] http://www.acas.org.uk/media/pdf/p/f/11287_CoP1_Disciplinary_Procedures_v1__Accessible.pdf
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