This is the final article where we look at the common mistakes that employer’s often make when dealing with disciplinary issues. You may feel that your dismissal was unfair or the process you’re going through does not feel right, the information below and in the other articles in this series could be of some help. These articles have been put together to empower the average person on the do’s and don’ts of disciplinary and dismissals.
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.
A 2013 Employment Appeal Tribunal case (Toal v GB Oils Ltd) ruled that employees exercising the statutory right to be accompanied at a disciplinary or grievance hearing are entitled to have present whomever they choose, provided the individual is a relevant union representative or work colleague. Employers cannot refuse a particular companion on the grounds that their presence is ‘unreasonable’ – the ‘reasonable’ requirement does not extend to the identify of the companion. This ruling contradict the Acas Code of Practice, which Acas updated in 2015. An Employee can therefore be accompanied by the employee/rep of his/her choice.
The maximum compensation for breach of the right to be accompanied is 2 weeks’ pay (subject to the statutory weekly pay cap).
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.
In Farnaud v Dr Hadwen Trust Ltd, 2011, Mr Farnaud was a Science and Education Director at a medical and research charity. He had a heated discussion with his line manager, Mrs Eglington, who went onto to submit a grievance about him. Dr Farnaud was disciplined and found to be guilty of aggressive and threatening behaviour and was summarily dismissed for gross misconduct.
The Employment Tribunal found that he was unfairly dismissed as the Employer had not interviewed Mrs Eglington (relying on her written grievance only) and had not interviewed the witness to the event (relying on Mrs Eglinton’s interview of that witness). The Tribunal found that the Employer could not have had reasonable belief about Mr Farnaud’s guilt based on reasonable grounds and did not conduct a thorough investigation or disciplinary process.
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”.
In 2015 in Thomson v Imperial College Healthcare NHS Trust, the Employment Appeal Tribunal agreed with the Tribunal that a dismissal can be unfair if the Disciplinary Panel Chair had no previous experience of disciplinary hearings and their inexperience denied the claimant a fair hearing (it was a senior employee with serious allegations against her). The Employer argued that because disciplining a senior employee was a rare event, the Chair could not be expected to have experience of this. But the EAT felt that if a disciplinary process could result in dismissal then to avoid the risk of a Tribunal finding the procedure unfair, the Employer should have provided the Chair with training there and then on how to handle the disciplinary process.
If an Employer wishes to have the option to increase a disciplinary sanction on appeal, it can only do so if this is explicitly stated in the disciplinary policy and the employee must be allowed a further right of appeal.
Not keeping adequate, clear records of the whole disciplinary process.
Including – What happens if an employee and employer do not agree the minutes/notes of a disciplinary or grievance hearing? An employer should provide a copy of the minutes/notes taken at the meeting to the employee. If the employee does not agree that the notes are accurate, the employer should ask him/her to give a corrected version. If the employer agrees that the employee’s version is accurate, the amendments can be agreed as the record. If the employer does not agree that the employee’s version is accurate, it should keep both versions on record. (Then both versions of the notes can be referred to at any later date, including at tribunal).
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.
There have been several cases where the Tribunal looked at the appropriateness of using external HR Consultants during the disciplinary process where the Employer is small in size and does not have sufficient staff to hear the disciplinary/appeal/conduct the investigation/needs professional advice etc and Tribunals take the general view this is acceptable as long as it is made clear who makes the final decision to dismiss and the decisions are made appropriately.
We hope that by reading these articles, you can gain strength for yourself, a friend or work colleague. Don’t stay silent please,