Guide: Disciplinaries

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Disciplinary Procedures

Introduction

The Employment Act 2002 and the Employment Act 2002 Dispute Resolutions) Regulations 2004 introduced provisions designed to encourage employers and employees to resolve disputes without having to go to an Employment Tribunal. An employer’s own policies can be more detailed, but must incorporate these minimum requirements.

Dismissal and Disciplinary Procedures
There are two types of dismissal and disciplinary procedure: standard and modified


Standard Procedure
This is a three-stage process:

1. Statement of grounds for action and invitation to a meeting.
The employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which led him to contemplate dismissing or taking disciplinary action against the employee.


The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.
2. Meeting
The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.
The meeting must not take  place unless - 
a. The employer has explained the basis for the disciplinary proceedings
b. The employee has been given a reasonable opportunity to consider his response.

The employee must take all reasonable steps to attend the meeting.
After the meeting the employer must inform the employee of his decision and notify the employee of the right to appeal against the decision if he or she is not satisfied with it.
3.  Appeal
If the employee wishes to appeal, he or she must inform the employer
If the employee informs the employer of his or her wish to appeal, the employer must invite the employee to attend a further meeting.

The employer must take all reasonable steps to attend the meeting.
The appeal meeting need not take place before the dismissal or disciplinary action takes effect.
After the appeal meeting the employer must inform the employee of his final decision.

When will the standard procedure apply?

It only applies in respect of ‘employees’; it does not extend to ‘workers’
It applies where the employer ‘contemplates action’

a. Where an employer contemplates dismissing an employee
b. Action short of dismissal, based wholly or mainly on the employee’s conduct or capability, other than suspension on full pay or the issue of warnings


Modified procedure


This is a two-stage process.

1. Statement of grounds for action
The employer must

a. set out in writing (i) the employee’s alleged misconduct which has led to dismissal, (ii) the basis for thinking at the time of dismissal that the employee was guilty of gross misconduct and (iii) the employees right to appeal against the dismissal.
b. Send the statement, or copy of it to the employee

2. Appeal
If the employee does wish to appeal, he or she must inform the employer

If the employee informs the employer of his or her wish to appeal, the employer must invite the employee to attend a further meeting
The employer must take all reasonable steps to attend the meeting
After the appeal meeting the employer must inform the employee of his final decision.

When will the modified procedure apply?
It only applies to a small number of gross misconduct cases where: -
The employer dismissed the employee by reason of his or her conduct without notice
The dismissal occurred at the time the employer became aware of the conduct or immediately thereafter
The employer was entitled, in the circumstances, to dismiss the employee by reason of his or her conduct without notice or any payment in lieu of notice, and
It was reasonable for the employer, in the circumstances, to dismiss the employee before enquiring into the circumstances in which the conduct took place

General Requirements of both the standard and modified procedure
There are several requirements common to both the standard and modified procedure:

1. Each step must be taken without unreasonable delay
2. The timing and location of the meetings must be reasonable
3. Meetings must be conducted in a manner, which allows both employer and employee to explain their case
4. Insofar as possible, a more senior manager should hear appeals
5. An employee has the right to be accompanied by a Trade Union Representative or another of the employer’s workers at any hearing under the statutory procedures.

The Right to be Accompanied
Under section 10 of the Employment Relations Act 1999 (ERA 99), as amended by the ERA 2004, a worker who is required or invited by an employer to attend a disciplinary or grievance hearing has the right to bring a companion. The companion is chosen by the worker and can be a full-time union official (whether or not the union is recognised), a certified lay official (someone the union has trained to accompany individuals to hearings) or a workplace colleague.

Solidarity can provide trained officials to accompany members.

At the hearing, the companion has the right to put the worker’s case, confer with the worker, sum up the case and respond on the workers behalf to any view expressed at the hearing but cannot answer questions on behalf of the worker.
He worker and the companion have protection against any detrimental act of dismissal in connection with exercising their section 10 rights. If working for the same employer, both the companion and the worker have the right to be paid. A lay official working for a different employer would be protected from detrimental action by that employer, but has not right to be paid by that employer for any time taken to deal with the hearing.

Dismissals to which neither procedure applies

All the employees of a description or in a category to which the employee belongs are dismissed, provided that the employer offers to re-engage all the employees so dismissed either before or upon the termination of their contracts
The dismissal is one of a number of dismissals in respect of which the employer has a duty under section 188 of TULRCA to consult collectively
At the time of the dismissal, the employee is taking part in unofficial industrial action, or other strike or other industrial action unless the circumstances of the dismissal are such that by virtue of s238(2) TULRCA an employment tribunal is entitled to determine whether the dismissal was fair or unfair
The reason or principal reason for dismissal is that the employee could not continue to work in the position, which he or she held without contravention of a duty or restriction imposed by or under any enactment

The employee is one to whom a dismissal procedure agreement designated by an order under s110 ERA applies at the date of dismissal.

Constructive dismissal

General Exemptions

There are some general exemptions to both the disciplinary and grievance procedures where:

The party has grounds for believing that starting or continuing with the procedure would result in a significant threat to any person or property

The party has been subject to harassment and has reasonable grounds to believe that starting or continuing with the procedure would result in his or her being subjected to further harassment

It is not practical to begin the procedure or to comply with a substantial requirement within a reasonable period.

Results of failing to follow procedure

Any employer that is contemplating dismissing an employee must follow the statutory procedure, otherwise any dismissal will be automatically unfair (ERA 96, section 98A) and the employee will receive a minimum award of four weeks’ pay (capped at a certain level). A requirement of one year’s qualifying service applies here.

A tribunal can increase or decrease the amount of any compensation depending on who is at fault.

What else might make a dismissal unfair?

Even if the employer has followed the statutory DDPs, certain procedural matters could make a dismissal unfair. These include:

A failure to consider a lesser penalty than dismissal

Holding a hearing without the employee present (apart from exceptional circumstances)

A refusal to take into account new evidence presented at the appeal

Failure to carry out disciplinary hearings in accordance with the rules of natural justice (Campion v Harmsworthy Engineering [1987] ICR 966)

Failure to obtain sufficient proof of the charge and an inadequate investigation (ILEA v Gravett [1988] IRLR 497

A delay in fixing a date for the disciplinary appeal