Disciplinary action is one of the most difficult tasks for an employer to undertake. Not only can it be a difficult process to put into practice, the cost of making a mistake can be extremely high, both in terms of jeopardising employee morale and in legal costs should the error result in an employment tribunal claim.
Employers make the same mistakes time and time again that could have been avoided by following the required procedure. The procedure is, however, rather complicated and employers must be prompt and consistent in implementing it. It is therefore hardly surprising that employers can be caught out. A number of the common mistakes made in the disciplinary process are set out below.
1. Not establishing the facts of the case
The employer must clearly establish the facts before deciding whether formal action is necessary. The facts must be recorded, e.g. documentary evidence; business rationale; written statements; minutes of informal investigatory meetings or formal consultation meetings.
2. Not spelling out the allegations against the employee properly
It must be made clear to the employee exactly what they are being accused of and what the employer’s concerns are. These must be the honest concerns of the employer and should be held consistently throughout the disciplinary process. Disciplinary action can only be imposed in respect of allegations that were alleged during the disciplinary proceedings.
3. Not warning the employee of the possible consequences of disciplinary action
The employee must be made well aware of the possible outcomes of any disciplinary action taken against them. This is in order for the employee to understand the gravity of any allegations made against them and for them to be able to defend such allegations fairly and appropriately.
4. Ignoring evidence in favour of the employee’s mitigation whilst considering the evidence against it
Even where an employer is convinced that the employee is in the wrong, any explanation or evidence to the contrary should not be disregarded; it should be investigated properly. Employers must ensure that they do not ignore any medical reports and that they do not fail to act on any recommendations made in them. All evidence that the employer intends to rely on should be provided to the employee ahead of any disciplinary hearing to allow adequate time to prepare a defence.
5. Getting the reason for the disciplinary or dismissal wrong
There have been cases where an employee who could have been fairly dismissed on the facts, was considered to have been unfairly dismissed because the reason stated for such action was incorrect. It is sometimes unclear whether an employee has been dismissed for capability or conduct; employers may prefer to claim conduct reasons in order to avoid confrontation, even though capability was the issue.
6. Using incorrect procedure
Following on from the point above, it is important to use the correct procedure for the problem in question. There are a number of steps that must be carefully followed in order for a fair and correct procedure to have been in place, depending on the nature of the problem. Conduct issues are not the same as capability issues, and each should be dealt with differently.
7. Having the same person deal with the whole disciplinary process
Where the same person is responsible for conducting the initial investigation, disciplinary hearing and subsequent appeal, the disciplinary process may be deemed unfair or biased towards the employer. Although it may not be possible to conduct the process in any other way for small employers, different people should carry out the process where practicable.
8. Not checking statutory or contractual obligations
Where dismissal will take place, employers must check the contractual or statutory notice period the employee requires and whether it is a requirement/appropriate that the employee works their notice period. Holiday pay due/owed must also be calculated, as well as any further statutory payments, e.g. statutory redundancy pay.
9. Not giving ‘lesser’ warnings where they are appropriate
Only in very serious cases will summary dismissal be justified; it is important that the employer’s decision and the action to be taken are reasonable in the circumstances. It is most likely that an employee should receive a series or warnings before a final written warning and dismissal are appropriate.
10. Not seeking advice along the way
The process required for disciplinary action can be quite complicated and it is easy for an employer to be caught out. The specific procedure will vary depending on the reason for dismissal, so employers should always take specialist advice when contemplating disciplinary action to ensure a fair process is followed and that this can be evidenced as necessary.
For any further information please call our 24 hour advice service on 0844 892 2772.