Best behaviour

first_imgBest behaviourOn 1 Feb 2000 in Personnel Today Given that the penalty for not following a proper disciplinary procedurecould be as much as £50,000, employers need to get the dismissal right. JoannaBlackburn sets out what such a policy should coverWhen employers lose unfair dismissal cases arising from staff misconduct, itis almost always because they did not follow proper disciplinary procedures.This means most unfair dismissal findings could have been avoided, a reminderof how important it is to have and follow an effective disciplinary procedurewhere an employee’s conduct at work falls below required standards. Whenemployers consider that the penalty for not following a disciplinary procedurecould be up to £50,000, taking time to get the dismissal right will become moreimportant. Features of a disciplinary procedure All disciplinary procedures should set out stages of potential sanction foracts of misconduct. Minor misdemeanours are normally dealt with by way of averbal warning, but repetition of similar misconduct may lead to further actionbeing taken in the form of written warnings and ultimately dismissal. By usingthis stepped route through a disciplinary procedure, an employee may eventuallybe dismissed for a relatively minor type of misconduct, such as persistentlyarriving at work late. The procedure should also allow for circumstances where the misconduct ismore serious and a higher level of sanction than a verbal warning isappropriate at an early stage. For example, where an employee has taken timeoff work without proper authorisation, an employer may determine that thematter is so serious as to warrant an immediate final written warning. Toprovide flexibility as to the stage of discipline that an employer initiates,the disciplinary procedure should state that it can be commenced at any stage,up to and including summary dismissal in instances of gross misconduct. Should a disciplinary procedure state which actions constitute grossmisconduct? There is no harm in giving examples of actions that may be grossmis- conduct, but you should expressly state that the list is not exhaustive.Also, committing one of the offences should not automatically lead to dismissal– an employer should judge each case on its merits and be prepared to considercompelling arguments in mitigation of a particular offence. Sometimes, issuing warnings or dismissal are not appropriate sanctions for aparticular type of misconduct, although they tend to be the most common indisciplinary procedures. It may be worthwhile giving other options,particularly as alternatives to a final written warning or dismissal. For example, in certain cases, a demotion may be an appropriate alternativeto dismissal. Equally, some cases may be best dealt with by a short suspensionwithout pay. If it is likely that you will want to exploit the opportunity touse alternative disciplinary sanctions, your procedure should state what thosesanctions are and when they may be used. Employees should be given the right to be accompanied at disciplinaryhearings as this is a new statutory entitlement. A colleague or trade union re-presentative, if appropriate, can accompany the employee. It does not matterwhether the employer recognises a particular union; if the employee belongs tothe union, he will be entitled to be accompanied by the union representative inthe disciplinary hearing. Employees are not entitled to bring a lawyer, however. If an employee doesbring a companion, the companion can address the hearing and liaise with theemployee but cannot answer questions on behalf of the employee. Employers will also have to be flexible about when a disciplinary hearingtakes place to allow accompaniment by the employee’s chosen companion. Anemployee can ask for a disciplinary hearing to be suspended for up to five daysif his chosen representative is not able to attend a scheduled hearing. Breach of the statutory rules on accompaniment at hearings can lead to aclaim being brought in the employment tribunal. Damages awarded can be up totwo weeks’ pay. This is not a significant financial penalty in itself butbreach of this rule is likely to lead to any dismissal founded on thedisciplinary hearing being deemed to be procedurally unfair. Employees should also be given the opportunity to appeal againstdisciplinary sanctions. It is advisable to have a right of appeal after eachstage of the disciplinary procedure. This ensures that an employee has theright to have any warnings or other sanctions independently reviewed by a secondperson. Indeed, if an employee is denied a right of appeal against a decisionto dismiss, the employment tribunal can award a further sum of two weeks’ payto the employee as a sanction against the employer. Again, where an employeehas been denied a right of appeal in a dismissal case it is more likely thatthe dismissal will be found to be unfair. Who should hear a disciplinary meeting? When an employer first suspects that misconduct may have taken place, heshould first investigate the alleged misconduct. The extent to which anemployer needs to carry out an investigation will depend on the type of allegedmisconduct, the initial evidence against the employee and whether the employeeadmits to the misconduct. At the most basic level, if an employee is seen to have clocked into worklate, there will be no need to carry out further investigation beforedetermining that the employee may be subject to disciplinary procedures. Thisis not to say the employee should necessarily receive a disciplinary warning.After all, the disciplinary hearing may unearth mitigating circumstances thatexplain why the employee was late for work. Where further investigation is needed, the employee should usually beinterviewed and, before the disciplinary hearing, should be given notice of allthe allegations against him, along with details of all the evidence theemployer has to support those allegations. Inevitably in complex investigations, a relatively senior employee will haveto take responsibility for obtaining evidence and interviewing the employee tobe disciplined. Ideally, that investigating employee would not go on to chair adisciplinary hearing. The reason for this can best be demonstrated by considering a similarscenario in criminal circumstances. The police may investigate a crime, collateevidence and believe an individual should be charged. But the individual wouldnot consider they had a fair trial if the judge was the same policeman who haddecided he should be tried for the crime. In short, the investigator should notalso be the judge. In some cases, this is impossible to avoid. It will happen particularly insmall companies or where the individual being disciplined is extremely senior.In most organisations, however, proper consideration should be given to whoshould be undertaking any investigation in order to leave two more seniorpeople to hear the disciplinary meeting and any appeal respectively. Where possible, an appeal should be heard by someone more senior than theemployee hearing the original disciplinary meeting. Where the managing directorhas made the disciplinary decision, the appeal should be either to the chairmanof the board or, if there is no chairman, the remainder of the board except themanaging director. Again, in some very small companies or where very senior people are beingdisciplined, it may not be possible to hold an effective appeal. In thosecircumstances, the difficulties should be explained to the employee beingdisciplined and extra care should be taken to ensure that the initial hearingwas conducted fairly. The disciplined employee should also have the chance tomake submissions to the disciplining officer if he or she believes there hasbeen a manifest error in the disciplinary decision. Tribunals have the power to consider whether a dismissal was procedurallyfair by taking into account the size and admin resources of the employer. Alarge employer will be expected to take more care to ensure that the role ofthe investigator, disciplining officer and appeals officer are separate andthat at each stage a more senior employee reviews the decisions of his juniors.Contractual or non-contractual Section 1 of the Employment Rights Act 1996 requires employers to informstaff in writing of where they can find disciplinary rules applicable to theiremployment. It is not an obligation to have a written disciplinary procedurebut this tends to encourage employers to introduce one. Disciplinary procedureswill often be included in or appended to a contract of employment unless thecontract states otherwise; the procedures will then have contractual force. There are two major drawbacks, however, to having contractual disciplinaryprocedures. First, revising and amending the disciplinary procedure to accountfor changes in the case law applicable to unfair dismissal may amount to avariation of contract. This may inhibit the employer making prudent changes tothe procedure. Second, where a disciplinary procedure is contractual, an employee has theright to have the disciplinary procedure applied where he is accused ofmisconduct. This can be costly to employers. For example, where an employee isin the first year of his employment, he has no right to bring a claim of unfairdismissal. If the employer has conduct problems with the employee, he may choose todismiss them on notice on the basis that the employee has no legal recoursearising out of that dismissal. But if the employer does not follow acontractual disciplinary procedure in effecting that dismissal, the employermay be liable for breach of contract. The employee can bring proceedings in theemployment tribunal to require payment of a sum equal to his salary for theperiod it would have taken the employer to follow his proper disciplinary procedures.In some cases, where disciplinary procedures are complex, this may amount tomore than a month’s pay. Accordingly, it is advisable for disciplinary procedures to be stated to benon-contractual. This does not mean that staff do not have to abide by disciplinarysanctions – after all, an employer still has the right to expect his staff tobehave appropriately in the workplace. But it does give employers extraflexibility, which is all-important when dealing with an area of law whichchanges frequently and carries heavy penalties when employers make errors. For employers that do not have disciplinary procedures or are concerned thattheir procedures need updating, there is plenty of help at hand. Acas producesmodel disciplinary codes and the DTI publishes advice for small employers.While prudent employers will still seek legal advice before dismissing staff,there is supplemental low-cost advice available from government sources. Joanna Blackburn is senior employment solicitor at Mishcon de Reya Related posts:No related photos. Comments are closed. Previous Article Next Articlelast_img read more