Tips for dealing with disciplinary proceedings

1. Relying on out-of-date policies and procedures

It is not enough to have policies and procedures in place. They must be regularly reviewed and updated to comply with changing employment legislation – and also properly followed when the circumstances arise.

2. Failing to identify an “employee”

Beware: “Workers” (agency workers, self-employed contractors or casual workers) and “employees” have different rights under employment legislation. Unlike “an employee”, “a worker” is restricted from the claims they can make. For example, workers cannot claim unfair dismissal, redundancy pay, maternity/paternity pay and statutory notice pay. This is a complex area of employment law and each situation is considered on a case-by-case basis.

3. Allowing the same person to make all disciplinary decisions

Small businesses often use the same individual to carry out the investigation, disciplinary and appeal stage of the disciplinary procedure. This should be avoided: make sure a different individual carries out each stage (and preferably a more senior person for each stage) so that the process is as impartial and independent as possible. A tribunal will take into account the size and resources of the company and the fact that it is difficult to find separate individuals – but it is not necessarily a defence.

4. Failing to deal with a grievance because disciplinary proceedings are taking place

Don’t be fooled into thinking that a grievance doesn’t need to be dealt with until the disciplinary proceedings are concluded. Do this and you risk breaching the ACAS Code of Practice, increasing any compensatory award. There is also the potential for an employee to claim constructive unfair dismissal by resigning as a result of the employer’s failure to properly deal with the grievance.

Unless the grievance relates solely to the disciplinary process being followed (in which case it can potentially be dealt with as part of the disciplinary process), the disciplinary procedure should be suspended and the grievance dealt with separately.

5. Failing to offer an appeal against dismissal

This is still a common – but easily avoidable – error that could result in a ruling of unfair dismissal finding and an increase to any compensation of up to 25 per cent. When confirming the decision to dismiss, an employer should always offer the right to appeal in writing.

Chris Cook is an employment solicitor at SA Law. Contact him on 01727 798019 or at chris.cook@salaw.com

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