All businesses, irrespective of size, must now follow disciplinary and grievance procedures that are at least equivalent to a statutory minimum standard.
This requirement is subject to an overriding duty on the employer to act reasonably in all the circumstances, and deal with disciplinary issues in a fair and consistent way.
Dismissals automatically unfair
If an employer fails to follow such a procedure, an employment tribunal will automatically treat a dismissal as unfair unless one of the exceptions applies. Damages can be increased by 10% to 50%.
If the employee fails to attend a meeting under the new procedure, without good cause, their compensation may be reduced by the employment tribunal even if they win their subsequent claim.
Exceptions
There are limited exceptions when the procedures do not apply. These include dismissals:
Of employees by reason of retirement (when an alternative procedure applies, involving the giving of notice by the employer in the run-up to the employee’s date of retirement, and his right to request to work longer).
In situations in which the employer or the employee has reasonable grounds for believing that they will be ‘exposed to a significant threat, such as violent, abusive or intimidating behaviour, or they will be harassed’. (The threat can be either of physical or mental harm; and can be when property or some third party is threatened or harassed).
In circumstances in which there is long-term illness or long absence abroad.
In cases of gross misconduct. In that case the employer may be justified in using the modified ‘two-step’ procedure.
Legal advice should be sought – the exceptions will only apply in limited circumstances
Click here to see a flowchart summary of the new rules. It assumes that necessary investigations have been made and that you have decided the matter should be handled formally. It takes into account the ACAS ‘Code of Practice 1; Disciplinary & Grievance Procedures.
If in doubt, take legal advice.
