In these articles in this series we are looking at common mistakes that employers often make when dealing with disciplinary issues. If you feel your dismissal was unfair or the process you’re going through does not feel right, the information below could be of some help. These articles have been put together to empower the average lay person on the do's and don’ts of disciplinary and dismissals.
If you feel overwhelmed and bamboozled by your company’s HR department, don’t assume they know what they are talking about. In many of our recent cases we have found that the HR advisors didn’t have a clue about the ACAS code of practice or employment law. firstname.lastname@example.org for support and advice.
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 – regarding the notice period and loss of salary over the period in which the disciplinary period should have been followed) and unfair dismissal in an Employment Tribunal. If you are dismissed before you have 2 years continuous service 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.
In a case in March 2014 the Supreme Court ruled that there is an implied contractual right to a fair disciplinary process, a serious breach of which could enable an employee to obtain an injunction preventing the employer from completing the process without starting again. In Chhabra v West London Mental Health NHS Trust this implied right was breached because the ‘conclusions’ of the person investigating the allegations against Chhabra had been amended extensively by an HR Advisor, resulting in an alleged misconduct being wrongly categorised as gross misconduct. The Court recognised that it is legitimate for the investigator to seek advice from HR about procedure or to ensure the report is clear and covers all necessary matters, but not the extensive amendments that were carried out in this case.
In August 2015 an Employment Tribunal found that an employee was unfairly dismissed after he was told to “not bother coming back on Monday” during an argument with his manager. In Townsend v Commercial Storage Ltd, Mr Townsend was a driver for a small family business. Mr Townsend took this comment as a dismissal and left the workplace; Mr Cooke, the manager, made no attempt to contact Mr Towsend after this and later sent him his P45. Mr Townsend claimed unfair dismissal but the Employer argued he had resigned and had not been dismissed. Mr Townsend was successful in his unfair dismissal claim with the Tribunal saying there was a total failure to adop any sort of fair procedure.
However in 1974 in Futty v P & D Brekkes Ltd, Mr Futty – a fish filleter in Hull – was told by his foreman “If you don’t like the job – fuck off!”. Futty took this literally and did, finding himself another job! He then brought proceedings for unfair dismissal. Other fish filleters gave evidence concerning the meaning which should be given to the expression and after hearing these explanations the Tribunal found that the foreman’s words were no more than “a general exhortation to get on with job”. There had been no dismissal.
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.
We will be setting out more expamples in the next articles in this series. so untill then please dont stay silent please,