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16 July 2019
As an employer, process is always key to dealing with HR matters, and certainly when dealing with disciplinary issues.
Failing to follow a process opens the door to claims for unfair dismissal or discrimination where they otherwise would not exist. Any “warnings” given without process don’t count, other than informally or by way of background.
The ACAS code of practice sets out the process that should be followed in disciplinary matters. Whilst the code is not law, a failure to follow it, even in part, can lead to an increase of up to 25% in the compensation awarded by an Employment Tribunal. With average awards between £15-31K, that’s a hefty increase on top. There are also the legal costs and the wider cost of extended management involvement and time out of the business to consider.
An employer needs to also ensure it follows its own process. A good process involves a proper investigation, an employee being given advance notice of the allegations and the documentation to support those allegations, together with the possible sanctions that may be considered.
At a disciplinary hearing, they must be given full opportunity to put forward their version of events or points in mitigation – or both. They have the right to be accompanied by a Trade Union representative or colleague of their choice.
An employer must then consider all the evidence, with an open mind, before making any decision on sanction. Once a decision is made, it should be communicated to the employee in writing along with confirmation of their right to appeal. If the employee appeals, the appeal should be heard by someone more senior, who has not had any previous involvement in the process.
When it comes to the appropriate sanction, there may be more than one option available to you. As long as the option chosen is reasonable, having regard to all the information available, a dismissal is likely to be fair and you will be in a good position to defend any subsequent claims that might be brought.
It’s important that those managers who deal with disciplinary processes are trained to do so - that they understand the importance of the process and apply it properly and consistently. Be aware also of any possible discriminatory factors that might affect the reasonableness of any sanction – such as a disability or pregnancy.
Employment Tribunal claims are still rising, albeit the increase is slowing down. With the rise in the number of claims, and the knock on effect that is having in the time it takes for them to be dealt with, it is as important as ever to ensure you’re following the proper processes.
For more information or assistance on any employment or HR matters, please contact Dawn Gallie on 01935 846233 or dawn.gallie@battens.co.uk
