Disciplinary hearing

Most managers will, at some stage, have to deal with misconduct by a member of staff. When doing so, it is important to ensure that a fair procedure is followed, or any resulting dismissal will almost inevitably be considered unfair by an employment tribunal, assuming that the individual satisfies the eligibility criteria for bringing an unfair dismissal claim.

You should also ensure that you comply with the company’s own internal disciplinary procedure (or capability procedure, if the allegations involve poor performance), since failure to do so may also potentially lead to a claim.

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Before instigating disciplinary processings, you should first consider whether or not formal action is in fact required. It may be appropriate to resolve the matter through informal discussions with the parties concerned. Remember however that if your “informal discussions” result in your giving the employee a warning in writing which is retained on their personal file, it could be viewed as a formal disciplinary warning and you would need to have followed a fair procedure in advance of giving it.

The ACAS Code is intended to provide practical guidance to employers and employees on how to fairly carry out disciplinary procedures for misconduct or poor performance. Failure to follow any part of ACAS Code does not of itself make an employer liable to proceedings. However, employment tribunals must take ACAS Code into account where relevant when considering whether an employer has acted reasonably or not. Furthermore, if the employee wins an unfair dismissal case (or one of a number of other types of the case) the tribunal can adjust the amount of compensation by up to 25% either way if either the employer or the employee has unreasonably failed to comply with the ACAS Code.

The ACAS Code is supplemented by the non-statutory ACAS guide. Unlike the ACAS Code, this does not need to be considered by tribunals, and neither can parties be penalised for failure to follow it. However, it does provide practical guidance on the handling of disciplinary matters, based on good industrial relations practice and the accumulated wisdom of several decades of unfair dismissal law.

The ACAS Code is an important document and should always be borne in mind by the employer when drafting or implementing a disciplinary procedure. However, it must be emphasised that simply following the ACAS Code may not be enough to persuade an employment tribunal that an employer has dismissed fairly in the event the disciplinary hearing leads to dismissal.

The law of unfair dismissal is primarily concerned with whether the individual employer acted reasonably in all circumstances, and so there is no one-size-fits-all answer to every case. More may be required from a procedural viewpoint, for example, on issues involving anonymous informants and whether to allow cross-examination of witnesses at hearings, which is not dealt with in the ACAS Code. The dismissal must also be substantively fair, that is, it must not have been outside the “band of reasonable responses” for the employer to treat the misconduct or poor performance as grounds for dismissal.

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Grievances

How the parties approach a grievance process will very much dictate the outcome. It is important for both parties to try to avoid an antagonistic approach and keep an open mind. While the employee will have started the process because they are feeling aggrieved, it is important for the employer to respond appropriately in order that the situation does not escalate, resulting in the employee become further aggrieved. Equally, an employee should engage in the grievance process with an open mind and be willing to listen to their employer’s point of view.

The ACAS Code is intended to provide practical guidance to employers and employees and sets out “the standard of reasonable behaviour” for both parties when an employee has a grievance that cannot be resolved informally. Although the obligations placed on employees are minimal, it is still important for them and their representatives to have regard to the Code if they wish to raise a formal grievance with their employer.

The ACAS Code is supplemented by the Non-statutory ACAS guide. This has no statutory effect, need not be taken into account by tribunals and parties cannot be penalised for failing to follow it. However it does provide practical guidance on the handling of grievance matters, based on good industrial relations practice and the case law principles of fairness.

Failure to follow any part of the ACAS Code does not of itself make an employer liable to proceedings. However, employment tribunals must take the ACAS Code into account where relevant when considering whether an employer has acted reasonably or not. Furthermore, if the employee subsequently brings certain successful claims, the tribunal can adjust the amount of compensation by up to 25% either way if the employer or the employee has unreasonably failed to comply with the ACAS Code.

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