In unfair dismissal claims, employment tribunals (except in Northern Ireland) take the “Acas code of practice on disciplinary and grievance procedures” into account where relevant and may increase an award of compensation by up to 25% for an employer’s unreasonable failure to follow it.

Some dismissals can be fair if the employer follows their disciplinary procedures correctly, but some dismissals are automatically unfair. However, many Employers make mistakes when handling disciplinaries and this can result in you having a claim for unfair dismissal if you have one years continuous service (which will increase to 2 years for employment starting after April 2012).  Here we look at the common mistakes Employers make.

Not following a disciplinary policy at all 

If your Employer has a contractual disciplinary policy but does not follow this your employer will be in breach of contract.

If you are dismissed without your employer following a contractual disciplinary policy you can bring a claim for breach of contract in a County Court or High Court, or wrongful dismissal (i.e. dismissal in breach of contract) in an Employment Tribunal. If you are dismissed before you have 1 years continuous service (or 2 years for employment starting from April 2012) then you do not have a right to claim unfair dismissal but you may have the right to claim breach of contract if the situation above applies to you.

For more details on unfair dismissal see our article on how your employment can come to an end.

Not warning the employee of the possible consequences of any disciplinary action before the disciplinary meeting

The employer must tell the employee the possible outcome of any disciplinary action, in order to give him or her a fair chance of defending the allegation properly, so it should not come as a surprise to the employee later on that dismissal is a possibility.

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

The employer should set out the alleged misconduct clearly and should, throughout the disciplinary process, be consistent in what it is accusing the employee of. Any disciplinary sanction must be imposed only in respect of allegations that were properly investigated and brought to the employee’s attention as part of the proceedings.

Not giving the employee the relevant evidence against him or her

The employer should provide the employee with all the evidence, typically in the form of witness statements, in advance of the disciplinary hearing. Ideally, the evidence should be provided when the employee is invited to the hearing, or at least far enough in advance for him or her to be able to prepare a proper ‘defence’.

Not giving ‘lesser’ warnings where they are appropriate

In some cases, the alleged misconduct will be so serious that summary dismissal for a first offence will be justified. However, in cases of minor misconduct, a series of warnings before dismissal will be more appropriate.

Not allowing the employee to be accompanied at a disciplinary hearing

It is a statutory right to allow the employee to be accompanied at a disciplinary hearing. The right to be accompanied arises when a worker who is invited by his or her employer to attend a disciplinary or grievance hearing makes a reasonable request for a companion (i.e. a fellow worker or trade union representative) to attend the hearing.

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

There may be limited circumstances where one individual’s evidence is enough to lead to a disciplinary sanction, but an employer should always look for more. Employers should be alert to the problems of relying on one person’s evidence and always look for corroborative evidence, where this is possible.

Not giving an adequate appeal stage

The right of appeal is fundamental to ensuring natural justice. Employers should give the employee the opportunity to appeal when the outcome of the disciplinary hearing is communicated to him or her.  Appeals should be unbiased and not be a “foregone conclusion”.

Not keeping adequate, clear records of the whole disciplinary process.

Delays in dealing with disciplinary issues.

Most cases should be dealt with in a matter of weeks and unexplained delays in the disciplinary proceedings will always be frowned upon by tribunals. However, more complex or difficult cases (for example, where fraud or a criminal offence is alleged) will inevitably take longer.

Having the same person deal with the whole disciplinary process

A common failing found in tribunal claims is that the same individual is in charge of the disciplinary process from start to finish. Ideally, different people should carry out the investigation, disciplinary hearing and appeal stage, although this will not always be practicable, particularly for small employers.

If you are still unsure, take time to read the full details of the ACAS code of practice and more details of what your Employer should do if they ask you to attend a disciplinary meeting.

If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to us at The HR Kiosk (click here) - a Human Resources Consultancy for small businesses – you can retain us for as much time as you need.
Workline is supported by Employment Lawyers Goodman Derrick LLP.  Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.

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