Employment Rights in Disciplinary Procedures

Introduction

Employment rights exist to protect you in the workplace.  They are perhaps never more necessary than if you are being investigated for misconduct.   What follows is a guide to the main employment rights available to you in a disciplinary procedures.   If you are facing a disciplinary procedure and would like more specific advice then please do not hesitate to contact us on [phonenumber].

What is a Disciplinary Procedure?

If your employer has concerns about your conduct at work then they may decide to take disciplinary action against you.  You might be the subject of a disciplinary procedure if your employer is concerned about matters such as your performance; conduct; poor time keeping or prolonged or persistent absence from work.

Where to Find your Employer’s Disciplinary Procedure

The disciplinary procedure should be set out in writing, clear, easy to understand and reasonably available to all staff.   It may be found in the staff handbook, the intranet or elsewhere.  The procedure should involve the following steps:

• A letter setting out the issue or allegation.
• A meeting to discuss the issue or allegation.
• A decision confirmed in writing as to the outcome of the process.
• The opportunity to appeal the decision.

When Can an Employer Take Disciplinary Action Against You?

Your employer should take action promptly if they intend to put you through a disciplinary procedure.  That means that an employer raising a problem about conduct that happened some time ago or that is simply no longer relevant would not be acting reasonably.

Employers Duty to Set Out Issues in Writing

If your employer intends to take disciplinary action against you then employment rights exist to ensure that they inform you in writing of their intention to do so.  The written confirmation should contain sufficient details to allow you to respond adequately to any allegation.  This was established in the case of  London Underground Ltd v Strouthos (2004) EWCA Civ 402, (2004) IRLR 636.  

Investigation

Before disciplinary action is taken an investigation must be undertaken and you must be given the opportunity to respond to the allegations.  If it is decided that there is a case to answer then you should be informed in writing with sufficient detail to be able to respond to the allegations.

The nature and extent of any investigation will vary depending upon the circumstances of the case.  An investigation leading only to a written warning may, quite acceptably, be less thorough than one in which the potential outcome is dismissal.  In particular, if the implications of dismissal would be extremely serious for you then the investigation would need to be more carefully undertaken.

In A v B [2003] IRLR 404 it was held that an investigation must focus equally on any evidence which may point towards innocence as well as guilt.  In other words, if your employer ignores the evidence available which shows that you are not guilty of the misconduct of which you are being accused then it would be unlikely that an employment tribunal would consider that the investigation that they had conducted would be fair.

The Meeting/ Hearing

What to Expect

Your employer should explain the nature of the complaint against you and go through any evidence that they have.  You should ask questions if you want to.  You should then be given an opportunity to present your side of the story, give any evidence that you have or call any witnesses.  (If you intend to call witnesses you should give advanced  notice of your intention to do so).

If you cannot attend

If you are unable to attend a disciplinary meeting over a long period of time, perhaps in the case of illness for example, then your employer is entitled to hold the meeting in your absence but must conduct it carefully and reasonably. ^[2] 

The Right to be Accompanied at a Disciplinary Hearing

Once an investigation has been carried out and you have been informed of the nature of the allegations against you or the issues that your employer has with your work then you employer should invite you to attend a meeting.   Employment right require your employer to allow you to be accompanied if you attend a disciplinary or grievance procedure.  Under section 10 of the Employment Relations Act 1999, provided that the request is reasonable then a single companion may accompany you.

The Decision

Following the investigation and the disciplinary meetings your employer will come to a conclusion about the disciplinary sanction it intends to impose.  There should not be undue delay in coming to a decision; being kept in suspense for a long period is not acceptable.   If you are dismissed and the decision that your employer has come to seems unduly harsh or unreasonable then you may have a case for unfair dismissal.  Employment rights protect you from suffering at the hands of unreasonable employers.  In the case of BHS v Burchall it was held that the employer must hold a reasonable belief that you are guilty of the misconduct at the time of the dismissal.

In considering whether your employer has been reasonable in terms of the sanction that they have imposed then the tribunal must not substitute its own decision for that of the employer but consider what the range of reasonable responses might be.  In other words, because  different employers might take a very different approach to the same problem the tribunal must consider what a reasonable employer might have done in the same circumstances.

Likely sanctions

The ACAS Guide to Disciplinary and Grievance Procedures advises that

Where there has been a single instance of misconduct it is usual to give a written warning.  A written warning should set out the nature of the poor performance or misconduct and the change in behaviour or the improvement in the performance required.

Where misconduct is serious or there has been a previous written warning then it is usual to issue a final written warning.

Where misconduct is so serious in nature or has serious consequences then it may be deemed gross misconduct.  A finding of gross misconduct qualifies for immediate dismissal.   Examples might include theft, violence, gross insubordination or gross negligence.

 The Right to Appeal a Disciplinary Decision

If you feel that the disciplinary action taken against you is unjust then you should appeal.  In most circumstances you will be required to appeal in writing within 7 days of the decision letting your employer know what the reason for your appeal is.

If you feel that the manner in which the disciplinary hearing or investigation was conducted was unfair then you could raise a formal grievance with your employer.

If you are facing a disciplinary procedure or have been dismissed following a disciplinary procedure and either the reason given for your dismissal or the procedure used was unfair then please contact us for assistance.  Call us on [phone number], we may be able to help you bring your case to an employment tribunal on a no win no fee basis.