How to conduct a fair disciplinary hearing and avoid getting it wrong

‘It’s not fair’ may sound like an unwelcome protest from an unhappy child, but when it’s said in relation to a disciplinary process it should be taken very seriously.

An employer’s failure to conduct a fair process can result in an employee making a successful claim for unfair dismissal if they are sacked as a result (1).

Regardless of if there is a justified reason to reach such an outcome, the dismissal will still be unfair if the disciplinary process conducted is unfair.

The importance of ensuring a disciplinary process is thorough and reasonable cannot be underestimated.

Larger employers with a dedicated HR department will have their disciplinary procedures clearly set out. For smaller companies, that do not have the benefit of HR support, the disciplinary process can be daunting, but it is no excuse for failing to follow a fair procedure.

There is an expectation that even small family run businesses, such businesses can vary in size, will have sound policies in place to avoid claims of unfair dismissal.

Companies that are owned and run by families make up a huge and crucial part of the UK economy. According to the Institute for Family Business 85 per cent of UK businesses are family owned (2).

There are 4.8 million family businesses, of which over 18,000 are medium and large enterprises. Irrespective of the size of the organisation, all employers are encouraged to follow the guidance provided by the ACAS Code of Practice.

The Code sets out the basic requirements of fairness that will be applicable in most cases; it provides the standard of reasonable behaviour for most cases (3).

Under the provisions of the Employment Rights Act 1996, where an employer fails to follow the ACAS Code in a disciplinary hearing, the employee will be able to claim an uplift of up to 25 per cent on any compensation awarded by an Employment Tribunal in any subsequent claim for unfair dismissal.

In Base Childrenswear Ltd v Otshudi the Tribunal made a 25 per cent uplift to an employee’s award following her former employer’s breach of the Code in failing to deal with a post-termination grievance (4)

For an employee to have a successful claim for unfair dismissal they will have to have two years’ service, show there was no lawful reason for dismissal or that the employer acted unreasonably in reaching the decision.

In such circumstances the employee can argue that either there was no lawful reason to dismiss, there was no fair procedure followed or both.

In conducting a fair disciplinary process and avoiding the risk of an unfair dismissal claim there are some key steps an employer must take:

1. The employer should write to the employee and formally invite the individual to attend a disciplinary hearing.

2. The employee should be given reasonable time to consider the allegations and prepare their case for the hearing. What is considered reasonable time to prepare is not clearly defined by the ACAS Code. Best practice is 48-hours although if it is a comprehensive investigation then more time is recommended.
3. Prior to the hearing the employee should be provided with all of the details of the allegations and evidence that the employer intends to consider at the hearing.
4. The employee should be informed of the potential outcomes of the hearing and warned if dismissal is possible.
5. The employee should be told of their statutory right to be accompanied by a trade union representative or colleague at the hearing.
6. If the employee is disabled, consideration should be given as to if any reasonable adjustments might be necessary. (5)

In all cases, and not just to minimise the risk of an unfair dismissal claim, an employer should always ensure that it conducts a fair disciplinary process.

References:

(1) Unfair Dismissal: [Internet] www.castleassociates.org.uk [Cited 09.03.2020] https://castleassociates.org.uk/support-centre/what-unfair-dismissal

(2) Family Owned Businesses: [Internet] www.ifb.org.uk [Cited 09.03.2020] https://www.ifb.org.uk/advocacy/about-family-business/

(3) Basic Requirements Of Fairness: [Internet] www.acas.org.uk [Cited 09.03.2020] https://www.acas.org.uk/acas-code-of-practice-for-disciplinary-and-grievance-procedures/html

(4) Post-Termination Grievance: [Internet] www.bailii.org.uk [Cited 09.03.2020] https://www.bailii.org/uk/cases/UKEAT/2019/0267_18_2802.html

(5) Reasonable Adjustments [Internet] www.equalityhumanrights.com [Cited 09.03.2020] https://www.equalityhumanrights.com/en/advice-and-guidance/what-are-reasonable-adjustments 

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