April 22, 2016

Where Did I Go Wrong?

An extra 25% compensation can be now be imposed by an employment tribunal in unfair dismissal claims.

So what are the top ten issues likely to result in this according to ACAS?…

  1. Failing to warn the employee about possible consequences

You must tell the employee from the outset the possible consequences of the disciplinary situation they face. Dismissal, for instance, should not come as a total surprise to them.

  1. Not setting out the accusations clearly

You must clearly explain the alleged misconduct from the outset. New allegations may be added but must always be properly investigated before they’re taken into account.

  1. Failing to provide the employee with relevant evidence

You must provide the employee with the relevant evidence on which you rely. This could be witness statements, CCTV footage etc. The employee must have time to consider this and prepare their response.

  1. Not giving sufficient warnings

Some cases of misconduct are so serious that summary dismissal is entirely justified. However, for less serious misconduct, a series of warnings is normally more appropriate.

  1. Failing to allow the employee to be accompanied

It’s a statutory right for an employee to ask to be accompanied at any formal disciplinary hearing or appeal. You should always tell the employee about this entitlement even if they subsequently choose not to bring a companion.

  1. Not corroborating evidence

Very occasionally, evidence from only one source may be sufficient for you to pursue disciplinary action. Wherever possible you should look for corroboration elsewhere; preferably from more than one source. Never rely on gossip, hearsay or opinion.

  1. No appeal

The right of appeal is fundamental. When an employee is advised of a disciplinary outcome, you must provide a right of appeal. Where they take place, appeals must be an unbiased review of the disciplinary decision and never a “foregone conclusion”.

  1. Inadequate Records

A clear record should be kept from each stage of the disciplinary process. Appointing a note taker for all formal hearings is important. Likewise, producing written witness statements avoids later over-reliance on fading memories.9. Delays

Most disciplinary issues can be investigated and progressed fairly quickly. A complicated matter – for instance where criminal activity is suspected – may justifiably take longer. Unexplained or unnecessary delay in proceeding is frowned upon by tribunals.

  1. The same person

Normally, the same person should not conduct the whole process. Ideally, one person should investigate. They pass their findings to a disciplining manager. Should the employee appeal, a third – preferably more senior – manager would deal with that. In the smallest organisations this may not always be possible. Where it is possible, tribunals expect it.

Problems like these can be avoided by utilising transparent, well publicised and well understood, written rules and procedures. If you follow Moorepay’s procedures and use one of our employee handbooks, this will undoubtedly assist.

When problems arise, there should always be a prompt and thorough investigation. Obtain corroborating evidence wherever possible. Keep a proper written record at each stage of the process. Move matters along as speedily as possible without compromising the thoroughness of any investigation or hearing.

Ensure the employee understands the specific allegations and possible consequences. Provide them with the detailed evidence on which you depend. Never rely on rumour, opinion or hearsay. There must be clear evidence against which you measure any disciplinary penalty you impose. Always give the employee sufficient opportunity to consider and respond to this evidence.

Ensure you don’t fall foul of statutory obligations. For instance, the same person should not conduct more than one stage of the process. The right to be accompanied and the subsequent right of appeal should always be offered.

Summary dismissal is reserved for the most serious situations; normally written warnings are utilised first. And any penalty should be consistent with what’s happened in previous, similar circumstances.

For more help or advice you can contact us. To keep up with the latest changes in legislation changes download our Employment Law Guide

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About the author

Mike Fitzsimmons

Mike is a Senior HR Consultant within the Moorepay Policy Team. He is responsible for the developing of employment documentation and is an Employment law advisor. With over 30 years of senior management and HR experience, Mike has managed teams of between 30 and 100 employees and is familiar with all the issues that employing people brings. He has also served as a non-executive director on the Boards of several social enterprises and undertook a five year tour of duty as Executive Chair of a £30+ million annual turnover Government agency.