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Top 10 Examples of How Flawed Disciplinary Procedures Can Give Rise to Unfair Dismissal Claims

For an employer, nothing is more frustrating than an employee that has been dismissed for “blatant misconduct” yet has a potential claim for unfair dismissal because the correct procedures were not followed. Here are top 10 examples of how disciplinary procedures can go wrong for employers:  

HR’s Role in Disciplinary Proceedings

When carrying out disciplinary investigations and hearings managers often seek guidance from HR on policy and procedure. However, sometimes HR go further and assess the employee’s credibility or culpability, which they cannot do.

Disciplinary Policy Not Covering the Reason for the Dismissal

In McElroy v Cambridge Community Services NHS Trustan NHS worker was dismissed for coming to work smelling of alcohol. The Trust’s substance misuse policy did not ban drinking alcohol shortly before coming to work. However, the disciplinary policy expressly stated that being unfit for duty through the effect of drink was an example of gross misconduct and referred to the substance misuse policy which defined this to mean the employee being incapable of functioning effectively at work. The employment tribunal found that, as this threshold had not been reached, the dismissal was unfair.

This case illustrates the need for an employer to ensure that its approach to disciplinary procedures complies with all other relevant policies. 

Relying on Breach of Implied Contractual Terms to Dismiss an Employee

Unless your employees owe you a fiduciary duty, in the absence of an express contractual term they are not under a general duty to disclose their own misconduct.

Consequently, the Employment Appeal Tribunal (EAT) in The Basildon Academies v Amadi found that an part-time employee was not under an express or implied duty to disclose to his employer allegations of sexual misconduct made against him whilst working elsewhere and the decision to dismiss in these circumstances was outside the band of reasonable responses.

Reason For the Dismissal Was Not Put to the Employee From the Outset 

An Employment Tribunal held Mbuyi v Newpark Childcare (Shepherds Bush) Ltd that a Christian nursery employee was directly and indirectly discriminated against by her employer on the grounds of her religion or belief when it dismissed her for expressing negative views about a colleague’s homosexuality.

The ET’s findings were largely due to the employer’s numerous procedural failings in the disciplinary process. Miss Mbuyi was not given the details of the allegations against her in advance of the disciplinary hearing, or informed in advance of the hearing that dismissal was a potential outcome. Further at the disciplinary hearing, discussion moved away from what had occurred to the issue of what Miss Mbuyi believed.

Reliance On Previous Warning

Employers sometimes rely on expired warnings to dismiss an employees which is extremely risky. In Bevan Ashford v Malin the EAT found the dismissal to be unfair because the warning that was relied upon had expired one day before the second misconduct occurred.

However, where there is a live final written warning in place, an employer is generally able to rely on this as meaning that any further acts of misconduct will justify dismissal.

Not Considering Other Sanctions 

In Brito-babapulle v Ealing Hospital NHS Trust, the EAT was keen to emphasise that it was not sufficient to assume that a dismissal will fall within the band of reasonable responses in a case of gross misconduct.

It is important to consider all the circumstances, including the sanction that has been applied in similar cases, the employee’s length of service and the employee’s disciplinary record. Any mitigating circumstances should also be taken into account which can include the employee’s remorse for his actions as well as any personal circumstances that may be relevant.

Mixing Up the Investigatory and Disciplinary Meetings

Once an employee admits to misconduct during an investigatory meeting, employers are tempted to move straight to a disciplinary sanction without conducting a disciplinary meeting. Employers should avoid doing this as there may be other issues that need to be investigated.

Employers should instead keep a written record of the employee’s admission and, once the investigation is complete, arrange a separate disciplinary meeting. 

Dismissing Employees Who Do Not Have the Qualifying Service Without Following Any Process or Procedure

Very often employers do not follow their disciplinary procedure when the employee in question does not have the requisite service to bring a claim ordinary unfair dismissal. However, employers should note that there is no service requirement for claims of automatically unfair dismissal; for example, dismissal for whistleblowing or for a health and safety reason. It is also important to remember that all workers and job applicants are also protected under discrimination law regardless of length of service. Therefore, employers should consider if any such issues might arise before moving straight to dismissal.

Increasing Sanction On Appeal 

As part of the appeal process, employers often consider increasing an employee’s sanction. Whatever the reason, this can be risky and should not be done without checking whether it is permissible by the disciplinary policy.

In McMillan v Airedale NHS Foundation Trust, the employer wanted to increase a final written warning to dismissal on appeal. Its policy did not expressly allow disciplinary sanctions to be increased on appeal. As the disciplinary policy was contractual, the employee was granted an injunction to prevent dismissal.

It is important for employers to not that the ACAS code of practice on disciplinary and grievance procedures expressly states that appeal should not result in an increased sanction.

An Inappropriate Decision Maker 

The ACAS code provides that, where possible, different people should conduct the investigation and the disciplinary meeting and then a further person for any appeal. The EAT held in Adeshina v St George’s University Hospitals NHS Foundation Trust that specific circumstances must be considered when assessing if the appeal decision-maker is inappropriate.

Owing to the above pitfalls, the importance of well drafted policies cannot be stressed enough as it is better to avoid these pitfalls to prevent the waste of time and cost of an employment tribunal.

For further information on ways to avoid employment tribunal claims or dealing with a dispute in the workplace, please do not hesitate to contact me for a free consultation atsamira.cakali@scesolicitors.co.uka or on 01133 50 40 30.


Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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