A recent case illustrated why process and the associated details, can be critical when dealing with disciplinary issues. We look at the basics of a disciplinary process, the importance of following it and what could happen if you don’t!
The case of Miss M Crew and Miss J Mason v Three Milestone Education Ltd shines a spotlight on mistakes that can be made when managing a disciplinary and the importance of considering each case on its own merit. But first let’s take a look at the process.
Why Do You Need a Process for a Disciplinary?
Under the Employment Rights Act 1996, as part of the written statement of terms and conditions of employment, employers must provide employees with information on the disciplinary rules and the procedures for disciplinary decisions and appeals, or refer the employee to some other easily accessible document, such as a staff handbook, containing that information.
What About the Acas Code of Practice?
The Acas statutory Code of Practice on Disciplinary and Grievance Procedures provides recommendations for dealing with disciplinary situations at work. Businesses may have their own processes that are more suited to their needs but the Acas statutory code is the minimum an employer must follow. Failure to follow the Acas Code may be taken into account by tribunals in deciding if a dismissal is fair. Similarly an unreasonable failure to follow the Acas Code may lead a tribunal to adjust the amount of compensation payable to the employee.
Any Other Benefits?
There are other sound reasons for having a documented process set out:
- Provides clarity – confirmation to staff what behaviour is expected behaviour as well as what may be deemed unacceptable or inappropriate.
- Clear structure – a mechanism to look at and resolve concerns constructively and encourage improvement. Sanctions are not the only outcomes and the process can identify what improvement is required of an employee and outline what support might be available to facilitate the required level of improvement.
- Consistency and fairness – to ensure rigour in its application across the business and to endeavour to be in the best position to successfully defend any unfair dismissal claim.
What Should a Disciplinary Process Include?
Acas advise six steps in a disciplinary process:
- Assessing the options – whether the matter can or should initially be dealt with informally; whether it sits within another process such as a capability process.
- Once the process is invoked, undertaking a fair procedure – this includes acting swiftly to inform the employee of the concerns and the process to be followed; at the same time being mindful of the employee’s health and wellbeing. Identifying who will conduct the disciplinary hearing and who might be needed to hear an appeal if one is raised.
- Carrying out an investigation to establish the facts of the case. The investigation should be done by someone other than the disciplinary hearing manager to maintain fairness in the process.
- Conducting the disciplinary hearing to review the evidence from the investigation – giving the employee adequate notice so they have time to prepare and allowing them to be accompanied by a work colleague or trade union representative. Providing them with the opportunity to ask questions of the investigation.
- Following a fair disciplinary procedure, the employer should decide on the best outcome based on: the investigation findings, what is fair and reasonable and what their workplace has done in any similar cases before. The decision should be communicated to the employee in writing and also detail their right to appeal the decision.
- Follow up after the hearing as appropriate – this may include talking to those staff who were aware of the issue, to ensure confidentiality is maintained; updating HR records.
Do I Have to Follow All the Steps?
Yes. The requirement is for a fair process that allows all parties the ability to participate and to have access to all of the evidence. Failing to undertake one of those steps such as a separate investigation could undermine the findings of the disciplinary and lead to a possible tribunal claim. But it is also important to consider each case on its own merit and recognise where adaptation to the process may be required.
The case found that an employer who refused to allow an employee’s mother to attend as their companion, was a failure to make a reasonable adjustment. The tribunal found there were extenuating circumstances due to the employee’s disability and the requirement for additional support and that rejecting the request, created an intimidating environment.
The same case also highlighted the importance of independence in investigations. The case involved two employees and as a consequence two hearings and investigations. The employer decided to swap the roles of disciplinary hearing manager and investigation officer between the two employee hearings. The tribunal found that there were “chances of contamination in the investigation between the decision maker and investigator of both cases..” and that the approach taken ” was “outside the band of reasonable responses”.
What Are the Repercussions for Not Following the Process?
- Risk of claims for unfair dismissal- inadequate procedures or failing to adhere to published processes could mean consideration is not given to specifics of a matter or the process is incomplete ahead of any disciplinary outcomes, resulting in higher risk of a claim being made.
- Costs of defending a claim – outside of the possible awards that could be made, there are legal costs as well as the costs of management time to consider.
- Reputational damage – externally to your employer brand which could impact negatively on relations with suppliers, customers and deter future employees. Similarly existing staff want to be reassured that that an organisation follows its own rules and won’t attempt to ‘fast track’ a process.
Employers can avoid these pitfalls by having documented disciplinary processes which are clearly communicated and accessible to all; ensure the processes are adhered to; and provide training to those hearing disciplinaries as well as those investigating them. Disciplinaries will be an inevitable part of the workplace environment, but employers who put these measures in place can reduce potential challenges and minimise risks of future claims.
