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The risks in failing to follow a fair disciplinary procedure

Published: 

Mon 29 October, 2018

Disciplinary sign

Given the opportunity most of us may be tempted to cut corners, after all it can sometimes make life much easier.

Such temptation should definitely be avoided, however, when having to deal with disciplinary matters in the workplace.

The disciplinary process can be stressful, difficult and problematic for all concerned and involved.

Although this is the case, employers should always conduct a full and fair process whenever required, as a failure to do so can have serious repercussions.

Employers will by now be very familiar with advice provided by the ACAS Code of Practice on Discipline and Grievance (1), which all employers are encouraged to follow.

It provides essential and practical guidance and sets out principles for handling disciplinary situations in the workplace. As it is a statutory document, a failure to adhere to it at any point may result in a financial penalty.

A failure to adhere to the guidance in the Code does not necessarily make a person or organisation liable to proceedings, but employment tribunals will take it into account when considering cases. Tribunals have the power to adjust awards by up to 25 per cent for unreasonable failure to comply with the Code.

Things will inevitably go wrong in the workplace; it may be colleagues falling out, repeated mistakes being made, unprofessional behaviour or acts of negligence. The disciplinary procedure is sometimes the best way to address such matters.

Following the disciplinary procedure in such circumstances allows an employer the perfect opportunity to make it clear what improvement is needed and expected. At the same time it allows an employee a reasonable opportunity to explain their side of the situation.

An organisation’s disciplinary procedure should be put in writing and be readily available to all staff. The policy should make clear what the rules are and the type of behaviour actions or conduct that is likely to lead to disciplinary action being instigated. It will also list what action the employer is likely to take in response to a disciplinary matter.

Employees may have seen in their employment contract or company disciplinary procedure that it is stated that the process in non-contractual. Whether the policy is contractual or non-contractual, employers still need to follow the essential elements of their disciplinary procedures in all but exceptional cases.

If an employer has a contractual disciplinary policy that it fails to follow it can be found to be in breach of contract.

This is highlighted in the case of Edwards v Chesterfield Royal Hospital NHS Foundation Trust (2). The employer’s disciplinary procedure was contractual but it failed to follow its contractual obligations towards Mr Edwards, which allowed him to pursue a claim for substantial damages as a result of the breach.

There can usually be no claim for breach of contract where the alleged obligation is non-contractual. However there may be an argument that features of the disciplinary process have become contractual as a matter of custom and practice (3), and as a result of being applied over an established period of time.

It is a matter that an employment tribunal may ultimately have to decide, which is why it is necessary for an employer to follow a fair disciplinary process.

Dismissing an employee will often leave the individual feeling aggrieved especially if they think it is unfair. This can lead to claims for unfair dismissal (4), which can be costly for an employer.

Ministry of Justice for statistics for 2017 revealed the highest sum awarded in a tribunal claim was £1,744,575.56 and, unusually, was awarded in an unfair dismissal claim. Usually the highest sum is in cases with claims for discrimination where there is no cap on awards.

The right to appeal is the crucial in any disciplinary procedure. The disciplinary appeal (5) can help and employer to address any mistakes made earlier in the process and to prevent claims being made against the organisation.

As part of a fair disciplinary procedure an employee should be given an opportunity to appeal against a disciplinary decision. This is covered in the ACAS Code, and so should be applied where any formal disciplinary action is taken

  1. ACAS Code of Practice- Discipline & Grievance, Available from: http://www.acas.org.uk/index.aspx?articleid=2174
  2. Edwards v Chesterfield Royal Hospital NHS Foundation Trust, Available from: https://www.supremecourt.uk/cases/uksc-2010-0122.html.
  3. Mondaq.com  Unfair dismissal cost employer £30,000, Available from: http://www.mondaq.com/uk/x/679080/Unfair+Wrongful+Dismissal/Egregiously+unfair+dismissal+costs+employer+30000
  4. ACAS Managing discipline http://www.acas.org.uk/index.aspx?articleid=4010

 

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