Disciplining an employee: 12 most common breaches of the ACAS code of practice

Mark Ferron LLB (Hons)Managing Director Castle Associates

I have over 27 years experience in dealing with employment law issues and a degree in law from The Nottingham Trent University.

Provide a range of HR services for the business in grievance, disciplinary and redundancy situationsIndependent investigator for any grievance or disciplinary situationsChair disciplinary, grievance and redundancy hearings and meetings on behalf of companiesProvide the support and help the business needs, saving time and money as well as alleviating the riskProvide practical training courses for business owners, directors, HR professional managers and supervisors, giving them the practical skills for grievances and disciplinary situationsRepresented and negotiated on behalf of my members for over 15 years, at local, regional and national levelRepresented members at disciplinary and grievance hearing and appealsRan and managed redundancy consultation processes ensuring the correct procedure is undertaken

1 Failing to follow the company’s disciplinary policy If you have a disciplinary policy and procedure which forms

part of the contract of employment, and you do not follow it during the disciplinary process, the employee may have a claim for breach of contract

or wrongful dismissal in the County Court or High Court, even if they do not have two years continuous service.

In March 2014, the Supreme Court ruled that there is an implied contractual right to a fair disciplinary process, and a serious breach of this could enable an employee to obtain an injunction preventing the employer from completing the process, requiring them to start the process again. 

2 Failing to inform the employee of the possible consequences of the disciplinary action You must inform the employee, from the outset, what

the possible outcome of any disciplinary action could be.

This will enable them to understand the seriousness of the proposed disciplinary action, and allow them a fair chance to defend the allegation properly.

It should not be a surprise to the individual if they are then subsequently dismissed after a disciplinary hearing.

3 Failing to set out the nature of the allegations clearlyYou should set out the alleged misconduct or gross

misconduct clearly and in writing.

There are occasions when new allegations come to light during the investigatory stage; these can be added to the process, as long as they have been properly investigated and brought to the employee’s attention as part of the process.

New allegations should not be sprung on the employee at the disciplinary hearing, nor just simply added to any disciplinary sanction.

4 Failure to provide the employee with all the relevant evidence against them

It is important that you provide the employee with all of the evidence collected during the investigation, in particular, what will be relied upon during the disciplinary hearing.

This needs to be in advance of the meeting and could be in the form of emails, policies, training records, witness statements and so on.

Ideally and best practice would be to send all of the information when the employee is invited to the disciplinary hearing. Alternatively, it should be sent far enough in advance of the meeting to allow the employee a reasonable time to prepare their defence.

5 Not giving a lesser sanction where it was appropriate

There will be some cases where the alleged misconduct will be so serious, and could amount to gross misconduct, where summary dismissal for the first offence will be justified and reasonable in the circumstances. However, in cases of minor misconduct, a series of warnings before dismissal will be more appropriate.

There are no national guidelines to determine what an employer could class as gross misconduct. Each employer will have behaviours which they will not tolerate at work; this will depend on the employer, company policies, the nature of the work and type of workplace. 

The action must be so serious that it irrevocably destroys any trust and confidence on the employers’ part.

6 Failing to allow the employee to be accompanied at the disciplinary hearing

It is a statutory right to allow employees to be accompanied at a disciplinary hearing, and the ACAS code of practice reminds employers of this requirement.

The right to be accompanied arises when you invite your employee to attend a disciplinary or grievance hearing, and they make a reasonable request for a companion, of their choice, to attend the hearing.

This can be a fellow worker, a trade union representative or an official employed by a trade union.

The maximum compensation for breach of the right to be accompanied is 2 weeks pay (subject to the statutory weekly pay cap).

7 Relying on evidence from one particular source or witness with no other corroborating evidenceRelying on evidence from one particular source or

witness with no other corroborating evidence

There may be some limited circumstances and occasions where one individual’s evidence is enough to lead to a disciplinary sanction, but you should always look for more evidence as part of your investigations to either prove, or disprove the allegation.

You must be alert to the problems of just relying on one person’s evidence and always look for corroborative evidence, where possible.

8 Failure to have an adequate appeal stageThe right to appeal is fundamental to ensuring natural justice and

a fair process.

You should give your employee the opportunity to appeal against the outcome of any disciplinary hearing after it has been communicated to them.

Appeals should be unbiased, normally with someone of a higher level; and certainly someone different and who had not been involved in the process.

An appeal should not be a "foregone conclusion".

9 Failure to keep adequate records

To stand a better chance of successfully defending an employment tribunal claim, you must keep a clear record of each stage of the disciplinary process, from the investigation through to the conclusion of the appeal.

It is too easy for ex-employees, or their representative, to find inconsistencies in the evidence if you or your managers have to rely on their memory.

10 Delays in dealing with disciplinary issuesIn most disciplinary cases, they can be

dealt with in a matter of weeks and any unexplained delays in the disciplinary process will always be frowned upon by tribunals.

There will, however, be more complex or difficult cases where it will inevitably take longer.

11 Failure to deal with grievances raised during the disciplinary processThere will be occasions during the disciplinary process

when your employee will raise a grievance.

The ACAS code of practice allows you to decide whether to deal with the grievance and disciplinary concurrently, or to suspend the disciplinary process in order to hear the grievance first.

This will depend on the detail of the grievance and whether it is related to the disciplinary process or not.

The important point is not to ignore the grievance

altogether.

12 Having the same person dealing with the whole of the disciplinary processWhilst the employment tribunal will take into account the

size and the resources available to the employer, a common failing found in tribunal claims is that the same individual is in charge of the disciplinary process, from the investigation through to the finish.

Ideally, different people should carry out the investigation, disciplinary hearing and appeal stage, although this will not always be practicable, particularly for smaller employers.

This is where using an external consultant would be invaluable, especially when there is no-one else to hear the appeal.

For more information please do not hesitate to contact me:

mark@castleassociates.org.uk

www.linkedin.com/in/markferron

twitter.com/castleassociates

www.castleassociates.org.uk