You need to demonstrate that you have been fair and reasonable in your treatment of any employee subject to disciplinary action. Your procedures must be equivalent to, or better than, the statutory minimum disciplinary and grievance procedures introduced in 2004. If they are not, an employee with one year’s service can claim that the dismissal was automatically unfair. This could also lead to an increase of between 10 and 50 per cent in the compensatory award to the employee and a minimum basic award of four weeks’ pay.
Check that your procedure includes the following, so you comply with these requirements. Take advice if it does not, or you are unsure.
1. A commitment by you, to investigate any offence that gives rise to a disciplinary action.
2. A statement of the employee’s right to be accompanied to any disciplinary hearing by a work colleague or trades union official, who has the right to contribute. If the employee chooses a trade union official, he (or she) will be entitled to attend, whether you recognise the union or not.
3. A commitment by you, to set out in writing to the employee details of the alleged conduct or characteristics or other circumstances that have led you to take disciplinary action against him (or her). The evidence must be provided before the disciplinary hearing, so that the employee can prepare his ‘defence’.
4. A commitment by you, to hold a meeting with the employee before any action is taken (except in cases where suspension is necessary), and to inform the employee of the outcome of the meeting.
5. A commitment by you, to give the employee an opportunity to state his case at each disciplinary meeting, and to take any mitigating circumstances into account.
6. Examples of the types of offence that constitute misconduct and gross misconduct (but make it clear that these are only examples, and not exhaustive).
7. An explanation that the seriousness of the offence will dictate the stage at which the disciplinary process is entered. For example, for offences of serious (but not gross) misconduct, the outcome of the first step in the disciplinary process might be to issue a written warning.
8. An adequate system of warnings. For example, one verbal warning, one written warning, and one final written warning before dismissal.
9. A system for ensuring that all meetings and decisions are recorded in writing and kept in the employee’s personnel file. Try to ensure that the minutes of any meeting are typed up straight away, and agreed with the employee as soon as possible thereafter.
10. A commitment by you, to allow the employee sufficient time (and if necessary training) for improvement, if the issue is poor performance.
11. Confirmation, at each stage of the disciplinary process, of what the next step will be if this stage does not have the desired effect. In particular, you should make it plain on issuing a final written warning, that the next disciplinary offence could lead to dismissal.
12. A commitment by you, to give adequate warning of any disciplinary meeting. Any such meeting should be chaired by someone impartial, at senior management level. This is particularly the case with appeal hearings.
13. Opportunities for the employee to appeal, at any stage of the disciplinary process, against any disciplinary action taken. A further meeting must be arranged to hear the appeal, and the employee must be informed of the outcome. Ideally the person hearing the appeal will not have been involved in the decision on disciplinary action.
It’s advisable to go through your disciplinary procedure every time, even with employees who cannot claim damages for unfair dismissal because they have less than one year’s service. They will not be entitled to sue for ‘automatically unfair dismissal’ because of a breach of the minimum disciplinary standards, unless they have at least one year’s service. However, they may be able to sue for automatically unfair dismissal if one of the exceptions to the general rule requiring a year’s service applies or if they sue for discrimination, where no minimum service requirement applies.
