A fair disciplinary procedure is often a daunting prospect for an employer, especially when that business does not have the benefit of an HR department on which to call.
It is, however, important not to underestimate the importance of a thorough and fair disciplinary procedure when employees exhibit poor behaviours. This is especially important when the disciplinary procedure may lead to an allegation of gross misconduct with the outcome being dismissal.
The failure to follow a fair procedure can lead to an employee having a legitimate claim for unfair dismissal and no matter whether the employee has committed the misconduct for which they are accused, they could still succeed in their claim if there is an absence of a fair procedure having been undertaken.
What does an employee have a show to successfully claim for unfair dismissal?
For an employee to have a successful claim for unfair dismissal they will have to show the following:
- They were an employee (in most cases, the employee will also need to have two years’ service);
- There was no lawful reason to dismiss (to dismiss lawfully, the employer must rely on one of five potentially fair reasons, these are: capability, redundancy, conduct, breach of statutory duty and some other substantial reason);
- Even, if there was a potentially ‘fair’ reason to dismiss, in the circumstances, the employer acted unreasonably in deciding to dismiss.
Employees who have been dismissed following a disciplinary hearing can argue that either there was no lawful reason to dismiss, there was no fair procedure followed or both.
When considering whether a fair procedure has been followed the Tribunal system looks to take the ACAS code of Practice into consideration as the minimum that is expected of an employer. The code provides practical guidance on handling disciplinaries within the workplace. When considering awards if an employee is successful in an unfair dismissal claim, a breach of the ACAS Code can result in any award being uplifted by up to 25%. This can be very costly!
An employer should have disciplinary procedures in writing which should be made available to all employees. It should clearly set out what the disciplinary process is within that organisation. It should also set out the examples of what will be considered to be poor conduct or poor behaviour and the potential outcomes.
A robust disciplinary procedure will give employers the opportunity to investigate and discuss any concerns they have surrounding an employee’s conduct but will also allow an employee a reasonable opportunity to explain their side of the story and account for their actions.
A fair procedure will minimise the risk of an employee believing that their employer has acted unreasonably and then consequently make a claim for unfair dismissal.
How can we help you?
For more information on disciplinary procedures, or any advice on HR and employment related issues contact us on 0114 3032300 or email [email protected].