(Extracted from the UKV Manager’s handbook)
Should you decide to take disciplinary action against an employee, the golden rule is that a fair procedure should always be followed in order to help prevent a claim against you.
A fair procedure will:-
• Give the employee an opportunity to explain their side of the story.
Such opportunity MUST be provided before dismissal even where misconduct is admitted, to enable the employee to explain any mitigating factors. It is your legal obligation to give due consideration to all factors when considering the disciplinary sanctions available.
An exception to this may apply when an employee is absent from the disciplinary hearing. This situation may exist where the employee is not available or is unwilling to attend. However, where the employee is sick or otherwise unavoidably absent you may be expected to delay holding a hearing where reasonable to do so.
• Allow the employee to be represented at the hearing.
With the exception of an allegation of serious criminal conduct, there is no rule of law that an employee has the right to be represented, a dismissal without representation will not necessarily be unfair.
However, a refusal to allow representation is a significant factor which an employment Tribunal may take into account when considering if a dismissal is unfair and is strongly advised that you allow the employee an opportunity to be represented at all disciplinary hearing where possible.
Representation normally involves the employee bringing a work colleague/friend/trade union representative simply as a witness to the disciplinary hearing BUT a request to be formally represented should not unreasonably be refused.
• Provide the employee with full details of the allegations made.
You should provide the employee with FULL details of ALL the allegations made against them in writing in advance of the disciplinary hearing so that they have a reasonable opportunity to prepare their explanations.
Witness statements (if any) should be disclosed in advance of the hearing to the employee. It is good practice to ensure that all witness statements are signed and dated by the person making the statement. Witnesses may be questioned by the employee accused of misconduct.
• Allow the employee the opportunity to dispute your evidence, provide their own evidence and argue their case personally or through a representative.
• Ensure hearings are conducted promptly.
Delays may result in the employee’s recollection of events becoming dim and prevent them from providing a satisfactory explanation. Unreasonable delay may result in a finding of unfair dismissal by an Employment Tribunal.
• Ensure the hearing is conducted in good faith.
You must keep an open mind as to the employee’s guilt or innocence and properly and fairly consider any explanations put by the employee.
Where possible, the processes of investigation, decision-making and appeal should be carried out by different members of the management team to minimise the possibility of bias.
You should also ensure that an Employment Tribunal applies your disciplinary procedures consistently between employees as inconsistency without good reason may viewed as unfair.
The ACAS recommendation for a fair warning procedure requires the following warnings to be issued in all cases other than gross misconduct :-
• Verbal warning (confirmed in writing).
• First written warning.
• Final written warning.
Allow an appeal.
The employee should be given the opportunity to appeal against the decision internally. An appeal procedure should be established and made known to the employee.
The only exception to this is where you can show the facts were so clear that an appeal could not reasonably affect the outcome. However, such circumstances are rare and you are advised to allow the employee an internal appeal against your decisions. What you regard as a situation in which an appeal would be pointless may well be viewed differently by an Employment Tribunal.
Once an appeal procedure has been created in the contract, it should be strictly adhered too. If not, you will be in breach of contract, which may be regarded, as wrongful. In addition where the employee concerned has the requisite period of continuous services (1 year), failure to apply a fair warnings procedure could result in a finding of unfair dismissal by an Employment Tribunal.
(Martin Button is the Managing Director of UKV Solutions Ltd incorporating UK Vending (Britain’s longest serving vending business), UKV Finance (underwriting sales aid leasing across a vast range of product groups in the UK and Ireland), UKV Corporate Solutions (software development and distribution), UKV Solar (providing Green Energy solutions to businesses through unique financing packages) and UKV Office Perfect (nationally providing reprographics technology including printing, photocopying, MFPs and SFPs and integrated server based and in-cloud software).
Disclaimer: The statements and opinions expressed in this article are those of the author and do not necessarily reflect those of UKV SOLUTIONS Ltd, trading as UK VENDING, UKV CORPORATE SOLUTIONS, UKV SOLAR, UKV FINANCE. UKV SOLUTIONS LTD does not take any responsibility for the views of the author. The author will not be held responsible for any comments posted by visitors to this site. Please note that this article and any article posted on the BLOG does not constitute legal advice. The author has used his best endeavours to make this article as accurate and complete as possible, but requests that the reader be aware that the law of England and Wales frequently changes. The author strongly advises the reader to take legal advice or appropriate professional advice before embarking on any action or making any decision commercial or otherwise.
DISCIPLINARY HEARINGS AND APPEALS – FAIR PROCEDURE (Extract)
Martin Button – Managing Director