Disciplinary procedures: common mistakes made by employers

In unfair dismissal claims, employment tribunals (except in Northern Ireland) take the “Acas code of practice on disciplinary and grievance procedures” into account where relevant and may increase an employee’s compensation award by up to 25% where an employer unreasonably fails to follow the code.

Our Crunch advisors are only able to answer accountancy related questions. If you have an employment question please either leave a comment below or phone the Acas Helpline on 0300 123 110.

There are many reasons why an employer may want to dismiss an employee, and some dismissals can be fair if the employer follows their disciplinary procedure correctly. There are also dismissals, that however well-handled by the employer, will be automatically unfair (see more details here).

However, if an employer makes a mistake when handling disciplinaries and dismissals, this can result in you having a claim for unfair dismissal if you have two years continuous service. Here we look at the common mistakes employers make when handling disciplinaries and when dismissing staff.

Not following a disciplinary policy at all

If your employer has a contractual disciplinary policy (i.e. mentioned in your contract of employment) but doesn’t follow this, your employer will be in breach of contract.

If you are 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 and unfair dismissal in an Employment Tribunal. If you’re dismissed before you have two years continuous service, then unless you are making a claim for automatic dismissal (details here) 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 from March 2014 the Supreme Court ruled that there’s an implied contractual right to a fair disciplinary process, a serious 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 categorised as gross misconduct.  The Court recognised 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 Brekkes Ltd, Mr Futty – a fish filleter in Hull – was told by his foreman: “If you don’t like the job – f**k off!”.  Futty 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 and 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 employment can come to an end.

Suspension

Read our advice about suspending employees prior to a disciplinary meeting.

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, before the actual disciplinary meeting, in order to give them 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 properly 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 dismissal 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 investigation should take place prior to any disciplinary action (although an investigation can continue through the disciplinary process if more information comes to light that needs investigating). The following points need to be considered when carrying out the investigation:

• 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 interviewed if a fact has been clearly established)
• Notes/records of the investigation meeting must be taken and kept. Witnesses must be asked if they agree that the notes taken 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

The employer should provide the employee with all the evidence, typically in the form of witness statements or other evidence, 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 conduct an investigation before the hearings
• sending him 16,000 documents one day before the hearing.

Not giving ‘lesser’ warnings where appropriate

In some cases, the alleged misconduct will be so serious (called gross misconduct) that summary dismissal for a first offence will be justified (summary dismissal is dismissal without notice or notice pay). However, in cases of minor misconduct, a series of written warnings before dismissal will be more appropriate.

There are no national guidelines to determine what gross misconduct is – each employer will have behaviours which they will not tolerate at work, depending on the employer and the nature of the work and type of workplace. Whatever action the employer defines as gross misconduct, the action must be so serious that it irrevocably destroys any trust and confidence the employer has in the employee.

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 reasonable 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 reasonable responses to the behaviour. The employer should consider any mitigating factors, such as exemplary service, normal behaviour and conduct, the consequences of dismissal (for the employees career), any provocation, length of service, consistent treatment between employees – a finding of gross misconduct will not necessarily justify instant dismissal, all the circumstances need to be taken into account.

The Employer should consider any mitigating factors, such as exemplary service, normal 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 given in 'bad faith'

If a warning 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 Spectum Property Care Limited 2015, Mr 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 employers 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, but the Court of Appeal said 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 the warning don’t 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 given specifically to make it easier to dismiss the employee at a later date
• There’s evidence of pre-determination of guilt by the employer
• The employee is misled about their right to appeal or not allowed to appeal.

A warning will still count as being in good faith, even if:

• The employer had a genuine belief that there were grounds for the warning but these were mistaken
• There were procedural problems with the disciplinary process
• The warning that was given was at a higher level that a Tribunal themselves would have imposed
• The employee him/herself didn’t think 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’re still ‘live‘ (i.e. still exist on the employee’s file and as long as the warning was given in good faith) – from the Tribunal cases of Davies v Sandwell Metropolitan Borough Council 2013 and Tyre v UKME (UK Mission Enterprise Ltd) 2016.

Previous warnings that have expired shouldn’t be used as the principal reason for dismissal; but previous warnings that have expired which are used as a relevant factor in the fairness of the new decision may be allowed – from the Tribunal case of 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) and the employer did not consider this would ever 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 a similarity of misconduct between a first and second offence; any further 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 – misconduct that was similar may lead to a more severe penalty; misconduct that was dissimilar may lead to a less severe penalty.

In Ham v The Governing Body of Beardwood 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’ve looked at 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 did not agree with her and found that the college had considered alternatives to dismissal and had considered giving disciplinary warnings but felt that dismissal was appropriate under the circumstances.

Not allowing the employee to be accompanied to 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.  See our article here about whether you can audio-record disciplinary meetings.

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 can’t refuse a particular companion on the grounds that their presence is ‘unreasonable’ – the ‘reasonable’ requirement doesn’t extend to the identify of the companion. This ruling contradicted the Acas Code of Practice, but Acas updated this in 2015. An Employee can therefore be accompanied by the employee/trade union rep of their choice.

The maximum compensation for breach of the right to be accompanied is 2 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 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, but 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 dismissed 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.

There may also be certain situations where a qualified legal representative may be able to accompany the employee at a disciplinary hearing – but this is mostly where there is a contractual right to legal representation in regulated professions and/or the outcome of the hearing could deprive them of their right to practice their profession.

Relying on evidence from one source/witness with no 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 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 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 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.

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 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.I

f 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.

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.

If you are still unsure, take time to read the full details of the ACAS code of practice and more details of what your employer should do if they ask you to attend a disciplinary meeting.

Our Crunch advisors are only able to answer accountancy related questions. If you have an employment question please either leave a comment below or phone the Acas Helpline on 0300 123 110.

If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk  – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.

Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.