Not following a disciplinary policy at all
If
your employer has a contractual disciplinary policy but doesn’t follow this,
your employer will be in breach of contract.
If
you’re 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’re dismissed before you have two years
continuous service, then you don’t 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’s an implied
contractual right to a fair disciplinary process, a severe 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 alleged misconduct being
wrongly categorized as gross misconduct. The
Court recognized that it’s legitimate for the investigator to seek
advice from HR about a 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 adopt any sort of fair procedure.
However
in 1974 in Futty v P & D Brekke's Ltd, Mr Futty – a fish filleter
in Hull – was told by his foreman: “If you don’t like the job – f**k off!”. Fatty
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. After hearing
these explanations, the Tribunal found that the foreman’s words were
no more than “a general exhortation to get on with the job.” There
had been no dismissal.
For
more details on unfair dismissal, see our article on how
your employees can come to an end.
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, to give him or her a fair chance of defending the allegation properly,
so it shouldn’t come as a surprise to the employee later on that dismissal is a
possibility.
Not setting out the
nature of the accusations clearly to the employee
The
Employer should set out the alleged misconduct clearly and should, throughout
the disciplinary process, be consistent in what it is accusing the employee of.
Any disciplinary sanction must be imposed only in respect of allegations that
were adequately investigated and brought to the employee’s attention as part of
the proceedings. For a misconduct dismissal to be fair, an employer has to show
that at the time of the clearing it believed the employee to be guilty of
misconduct and that it had reasonable grounds for believing this, having
carried out “as much investigation into the matter as was reasonable in all the
circumstances.”
There
are no ‘rules’ as to the level of investigation the Employer should conduct
into the employee’s suspected misconduct; it will depend on the particular
circumstances. However, the inquiry should take place before any disciplinary
action, and the following points need to be considered when experimenting:
Identify
the allegation to be investigated
The
investigating ‘officer’ must have no previous involvement in or of the matter,
if at all possible; should keep an open mind, and conduct the
investigation as quickly as possible
The
‘accused’ employee and witnesses need to be interviewed (not all witnesses need
to be questioned if a fact has been established)
Keep
notes/records of the investigation meeting. Ask the witnesses if they agree
that the notes are a true reflection of the conversation. Advise witnesses of
their duty of confidentiality
An
investigation report should be drawn up which sets out a summary of the
evidence, including any inconsistencies. This report should not draw any
conclusions, that is the role of the disciplinary panel. Although the
investigator may have the remit to recommend whether the matter should proceed
to a disciplinary hearing or not
Acas
produced a guide to Conducting Workplace Investigations in October 2015, which
you can read here.
Not giving the
employee the relevant evidence against him or her
The
Employer should provide the employee with all the evidence, typically in the
form of witness statements, in advance of the disciplinary hearing. Ideally,
the evidence should be provided when the employee is invited to the hearing, or
at least far enough in advance for him or her to be able to prepare a proper
‘defence.’
In
August 2014, the former BBC Head of Technology was found to be unfairly
dismissed (although the Tribunal ruled he had partially contributed to his
dismissal) and the Tribunal said they were “astonished” at the BBC’s “cavalier
disregard for any of the norms of a fair disciplinary process.” This
disregard included:
discussions
of his dismissal in advance, as a foregone conclusion
interviewing
replacements before the disciplinary procedure had begun
failing
to investigate the hearings
They
are sending him 16,000 documents one day before the hearing.
Not giving ‘lesser’
warnings where they are appropriate
In
some cases, the alleged misconduct will be so severe that summary dismissal for
a first offence will be justified. However, in cases of minor
misconduct, a series of warnings before discharge will be more appropriate.
There
are no national guidelines to determine what gross misconduct is – each Employer
will have behaviours which they won’t tolerate at work, depending on
the Employer and the nature of the book and type of workplace. The action must
be so profound that it irrevocably destroys any trust and confidence on the
employers’ part.
In
a case in September 2013 (Brito-Babapulle v Ealing Hospital NHS Trust), the
Employment Appeal Tribunal found that when considering the fairness of a
dismissal, and in particular whether the decision to dismiss falls within the
band of reasonable responses open to a fair employer, an employer (or Tribunal)
should not jump straight from a finding of gross misconduct to a conclusion
that dismissal was within the range of appropriate responses. The Employer
should consider any mitigating factors, such as exemplary service, expected behaviour, and conduct,
the consequences of dismissal (for their career), any provocation, length of
service, consistent treatment between employees – a finding of gross misconduct
won’t necessarily justify instant dismissal.
Warnings
are given in ‘bad faith’ – if notice is given (that later is used as
part of a redundancy selection exercise or the next stage in a disciplinary
process) in ‘bad faith’ it may not be safely relied upon by an Employer. You
would like to assume that an appeal would resolve this issue, but what if the
employee appealed against the original decision and the appeal was also
conducted in bad faith? Or where the employee was prevented from appealing? In
Way v Spectrum Property Care Limited 2015, Mr The way was given
a final written warning for hiring a relative without disclosing this fact,
which was in breach of company fair recruitment procedures.
His
manager, Mr Brooks, gave him this warning despite knowing of Mr Way’s
relationship with the new starter and agreeing with the recruitment. Mr Way
wanted to appeal but was told that if he did, there was a risk that
the situation could be escalated to a dismissal. Several months later, Mr Way
sent inappropriate e-mails in breach of his Employer's rules, and as
the previous warning was still ‘live,’ he was dismissed. The
Employment Tribunal and Employment Appeal Tribunal said that his
dismissal was fair. However, the Court of Appeal noted the Tribunal had not
considered the ‘bad faith’ argument and sent the case back to Tribunal. The
court said that a disciplinary warning given in bad faith is not to be taken
into account when deciding whether there is sufficient reason for dismissing an
employee.
So,
what would make a warning be in ‘bad faith’? If the Employer knows the grounds
for that warning do not exist; if the warning is because of a protected
characteristic under the Equality Act; it covers up someone else’s misconduct
or poor performance; it’s explicitly given to make it easier to dismiss the
employee at a later date; there is evidence of pre-determination of guilt; the
employee is misled about his right to appeal or not allowed to appeal.
A
warning will still count as being in good faith, even if – the Employer’s
genuine belief that there were grounds for the warning was mistaken;
there were procedural problems with the disciplinary process; the warning that
was given was at a higher level than a Tribunal themselves would have
imposed; the employee, him/herself, did not this it was fair.
Therefore,
if an employee alleges that an earlier warning was given in bad faith, the
disciplinary panel should consider whether there are grounds to look at the
previous warning (particularly if the latest situation could lead to
dismissal).
Using
previous disciplinary warnings:
Generally,
previous warnings can be taken into account if they are still ‘live‘
(i.e., still exist on the employee’s file and as long as the notice was
given in good faith) – Davies v Sandwell Metropolitan Borough Council 2013 and
Tyre v UKME (UK Mission Enterprise Ltd) 2016. Previous notices that
have expired should not be used as the principal reason for dismissal. However,
earlier statements that have passed which are used as a relevant factor in the
fairness of the new decision may be allowed – Airbus UK Ltd v Webb 2008 (as
long as they are not the principal reason for dismissal – Diosynth Ltd v
Thomson 2006). In 2017, in Stratford v Auto Trail VR Ltd the Employment Appeal
Tribunal held that an expired warning COULD be taken into account when
considering whether a dismissal was fair or unfair (when the final
disciplinary offence was not in itself gross misconduct) – but this
was because the employee Stratford had a terrible disciplinary record (17
incidents in less than 13 years). The Employer did not consider this would
every change.
In
a recent Employment Appeal Tribunal decision (Wincanton Group plc v Stone) the
EAT said that the Acas Code of Practice does not require similarity of
misconduct between a first and second offence; any different type of misconduct
could result in further disciplinary action. However, Tribunals may take into
account the nature of the offence that led to the warning when
deciding if a dismissal was fair – similar misconduct may lead to a more severe
penalty; misconduct that was dissimilar may lead to less severe punishment.
In
Ham v The Governing Body of Bearded Humanities College, the
Employment Appeal Tribunal, at the end of 2015, considered whether a series of
relatively minor acts of misconduct could be ‘aggregated’ to allow a fair
dismissal without previous disciplinary warnings. Ms Ham was
dismissed in 2011 on several grounds, none of which the college felt were gross
misconduct in their own right. The original Tribunal found the dismissal to be
unfair as the college had ‘totted up’ the individual acts of misconduct to
justify dismissal on the grounds of gross misconduct. The college
appealed, and the EAT found the Tribunal had been wrong, they should
have looked at all the conduct ‘in its totality.’ The case returned to
Tribunal to be reconsidered, and the Tribunal said the decision to
dismiss was fair. Ms Ham then appealed, saying it had not been
reasonable to dismiss her without issuing her any disciplinary warnings first.
The EAT disagreed with her and found that the college had considered
alternatives to dismissal and had considered giving disciplinary warnings but
felt that release was appropriate under the circumstances.
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 participate in the hearing. See our new article here about
whether you can audio-record disciplinary meetings.
A
2013 Employment Appeal Tribunal case (Toal v GB Oils Ltd) ruled
that employees are 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 because their
presence is ‘unreasonable’ – the ‘reasonable’ requirement does not extend to
the identity of the companion. This ruling contradicts 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 two weeks’
pay (subject to the statutory weekly pay cap). In Gnahoua v Abellio London Ltd
2017, the Employer, a bus company refused to allow a driver to be accompanied
by either of two brothers who were union officials, as they were banned from
attending workplace meetings because of previous threatening conduct. The
Employment Appeal Tribunal believed the employee had not though suffered any
loss of detriment by not having his chosen companion (and the disciplinary
hearing had been conducted comprehensively). Therefore the claimant was
entitled to £2 compensation!
In
Talon Engineering Ltd v Mrs V Smith, in August 2018, the Employment Appeal
Tribunal found that Mrs Smith was unfairly dismissed (after referring
to her colleague as a ‘knob head’ in several e-mails!) because of the Employers's
refusal to postpone her disciplinary hearing a second time because her union
representative could not attend.
The
first disciplinary hearing was postponed as Mrs Smith was unwell and
then had a holiday booked. The hearing was rearranged, but her trade
union rep was unavailable on that date, and Talon would not postpone the
hearing again. Mrs Smith refused to attend the hearing, so Talon
conducted the hearing without her, and she was dismissed without notice. She
did appeal, but this was not successful. The original Tribunal said
that no reasonable employer would have forgiven her and she won her claim.
Talon Engineering appealed, but the EAT said the Tribunal’s decision
was correct when it said the company had behaved in an “entitled and hasty”
way.
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 on
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 questioned the witness to the event (depending on Mrs Eglinton’s
interview of that witness). The Tribunal found that the Employer could not have
had a reasonable belief about Mr Farnaud’s guilt based on reasonable
grounds and didn’t conduct a thorough investigation or disciplinary process.
Read
about using evidence from social media here.
Not giving an
adequate appeal stage
The
right of appeal is fundamental to ensuring natural justice. Employers should allow
the employee to appeal when the outcome of the disciplinary hearing is
communicated to him or her. Requests 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 dismissal could 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 with 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.
See
“warnings given in ‘bad faith'” above.
If
someone has been dismissed and the appeal has not yet been heard, can an
employer advertise for a replacement? An employer can, but they would be best
to wait if the need for a replacement is not urgent – this is because an
employee could claim that the recruitment for his/her replacement meant the
appeal outcome had been prejudged. Also, if the appeal is successful and the
employee reinstated, then the new person who has been offered the job will need
to have their offer withdrawn, which could lead to a breach of contract claim.
Not keeping adequate,
clear records of the whole disciplinary process
Including
– What happens if an employee and Employer disagree with 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 disagrees
that the notes are accurate, the Employer should ask him/her to give a
corrected version. If the employer agrees that the employee’s performance is authentic,
the amendments can be decided as the record. If the Employer disagrees 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 within a matter of weeks, and unexplained
delays in the disciplinary proceedings will always be frowned upon by
tribunals. However, more complex or challenging cases (for example, where fraud
or a criminal offence is alleged) will inevitably take longer.
See
our main article on Disciplinaries for details of the 2015 case of Williams v
Leeds United Football Club, where the High Court found that in principle there
is no limit on the length of time that can pass between an employee’s gross
misconduct and their dismissal without notice if the employer was unaware of
the employee’s wrongdoing during that time.
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.
