Employees who are suspected of misconduct should be dealt with according to the disciplinary policy and procedure that applies to them.
Current cap on an unfair dismissal compensatory award is £86,444 with a possible basic award of £15,750. Add in notice and the cost of unfair dismissal can get expensive.
The ACAS Code establishes the procedural rules employers must observe. Failure to follow the ACAS Code may lead to unfair dismissal claims.
It is important to be able to demonstrate impartiality and transparency throughout the process. Employees should not be dismissed for a first disciplinary offence. The exception to this is where the employee is guilty of gross misconduct. A gross misconduct offence is one that is so serious that dismissal without notice for a first offence is justified. Where the employer has a disciplinary policy it will usually set out examples of gross misconduct offences.
The appropriate response to alleged misconduct will depend on the nature of the offence. It may be appropriate to deal with minor misconduct by giving words of advice or holding an informal counselling meeting with the employee. More serious or repeated misconduct should lead to a staged series of formal warnings. This will typically involve a verbal warning, a written warning and a final written warning. Such warnings remain on an employee’s record for a prescribed period of time, usually 6-12 months. If the employee is guilty of further misconduct whilst a final written warning is live on their record, they may be dismissed with notice where it is reasonable.
- Employers do not have to prove beyond all reasonable doubt that an employee is guilty of a disciplinary offence. The test is whether the employer has an honest belief that the employee is guilty. This belief must be based on reasonable grounds, following a reasonable investigation. The more serious the allegation, the more compelling the evidence against the employee needs to be.
It is important that employers follow a fair disciplinary process when dealing with misconduct cases. The ACAS Code establishes the procedural rules employers must observe. Failure to follow the ACAS Code may lead to unfair dismissal claims.
Tribunals can award increased compensation against employers who fail to follow the ACAS Code.
Broadly, the ACAS Code requires the following:
- Employers must carry out a reasonable investigation. Where a period of paid suspension is appropriate pending an investigation, it should be for as short a period as possible and kept under review. A suspension should be carefully considered and the reasons for its necessity documented. Taking advice before suspending is recommended.
- Different people should carry out the investigation and disciplinary hearing. If HR is involved, they should support the process but not control it or be the decision maker unless their role in the decision making is clear from the outset.
- Prior to the disciplinary hearing, the employee should be informed in writing of the misconduct alleged and be provided with copies of all supporting evidence.
- At the disciplinary hearing, employees should be taken through the case against them and be given the opportunity to provide their version of events. Employees should have the opportunity to ask questions, present evidence, call witnesses and challenge what witnesses say.
- After considering all the evidence, the manager responsible should decide whether or not the employee is guilty of the misconduct alleged and if so, the appropriate disciplinary penalty. The employee should be informed of the decision and this should be confirmed in writing.
- Employees must be given a right of appeal. If exercised, an appeal hearing should be arranged.
- A different manager, ideally more senior than the disciplining manager, not previously involved in the process, should hear the appeal.
- Employees have the right to be accompanied to disciplinary and appeal hearings by a trade union representative or colleague
- All steps in the process must be taken without unreasonable delay.
It is important that full notes are taken of what is discussed at disciplinary and appeal meetings.
The outcome of the disciplinary procedure must not be pre-determined in any way. This will render the dismissal unfair.
This briefing note should not be relied on as legal advice. This information relates to the UK only. Please contact us for advice on your specific circumstances.
