For some employers, trying to work through a fair disciplinary procedure can be likened to navigating a minefield. However, the importance of following a fair procedure should not be underestimated by employers as to not do so may lead to an employee having a legitimate claim for unfair dismissal. This situation may even arise when the employer’s initial concerns about an employee are justified.
What does an employee have a show to successfully claim for unfair dismissal?
In order for an employee to have a successful claim they will have to show the following:
- They were an employee (in most cases, the employee will also need to have two years’ service);
- There was no lawful reason to dismiss (to dismiss lawfully, the employer must rely on one of five potentially fair reasons, these are: capability, redundancy, conduct, breach of statutory duty and come other substantial reason);
- Even, if there was a potentially ‘fair’ reason to dismiss, in the circumstances, the employer acted unreasonably in deciding to dismiss.
Employees who are dismissed as a result of a disciplinary hearing may seek to argue that there was no lawful reason to dismiss or that their employer did not follow the correct procedures.
Top Tips for employers to avoid dismissal claims
When preparing for a disciplinary hearing, in order to try and avoid a potential unfair dismissal claim, employers should ensure they follow the below steps:
- Formally invite the employee to the disciplinary hearing in writing.
- Ensure there is sufficient time between inviting the employee to the hearing and the hearing date to allow them time to consider the allegations and evidence and to prepare their case accordingly.
- Ensure that, prior to the hearing, the employee is provided with details of the allegations and all of the evidence that the employer intends to consider at the hearing. The possible outcomes of the hearing, including a potential dismissal, should be included in the letter.
- Inform the employee of their right to be accompanied by a trade union representative or colleague.
- If the employee is disabled, consider whether any reasonable adjustments might be necessary.
Employers are encouraged to follow the statutory guidance found in the ACAS Code of Practice and Employment Tribunals are required to take the Code into consideration. The Code provides practical guidance for handling disciplinary situations in the workplace. If an employer is found to have breached the Code, a tribunal can increase any award by up to 25%. This can be a costly consequence for employers as from 6 April 2019 the maximum unfair basic dismissal award will be £15,750 and the new maximum unfair dismissal compensatory award will be £86,444.
An organisation’s disciplinary procedure should be in writing and be accessible to all employees. It should make clear what the process is as well as the types of conduct or behaviour that may lead to disciplinary action being taken as well as the potential outcomes.
A thorough disciplinary procedure will afford employers the opportunity to investigate and discuss any concerns they have surrounding an employee’s conduct but will also allow an employee a reasonable opportunity to explain their side of the story and account for their actions. By following a fair procedures it will lessen the risk of an employee believing that their employer has acted unreasonably and then consequently make a claim for unfair dismissal.