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The most common mistakes employers make when handling a disciplinary issue

Disciplinary hearings are so important.  Handled well, a disciplinary hearing can be an opportunity to improve an employee’s wayward behaviour or to dismiss them fairly.

Generic you're firedHowever, when disciplinary hearings are handled badly, they can permanently damage the trust and confidence of an employee and/or drive the employee to bring an expensive and time consuming tribunal claim against its employer.

Below, we discuss the most common mistakes employers make and ways to avoid them.

Not following the ACAS Code of Practice or your own internal policies and procedures

The ACAS Code of Practice provides best practice guidance to employers on how to handle disciplinary hearings. It is sensible, practical advice written in plain language.

Whilst it is not legally binding, a failure to pay any heed to the ACAS Code of Practice without good reason will often fatally undermine an employer’s defence to a tribunal claim as well as increasing an employee’s compensation by up to 25%.

Failing to follow your own disciplinary policy is also much more likely to lead to a judgment against the employer. Employers should familiarise themselves with the Code and its own policies, following both wherever reasonably possible.

Not carrying out a sufficient disciplinary investigation

The keyword being “sufficient”. An investigation need not be forensic and nor does it need to prove categorically that an employee is guilty of the allegation(s). However; it is important that an employer keeps an open mind and does not act as though a decision about guilt has already been made. Any evidence gathered during the investigation, such as witness statements or CCTV evidence, should usually be provided to the employee in advance of the disciplinary hearing so that the employee has enough time to consider and respond to it.

Not being clear enough about the reason for the disciplinary hearing

Employers should spell out the disciplinary allegations in sufficient detail, both during the investigation and in the letter inviting the employee to a disciplinary hearing. It is one of the basic principles of fairness that an employee understands the allegations against them. So, if the allegation is one of theft, it is important that the employer does not shy away from using this word and explains the factual basis for that allegation.

Not being clear enough about the potential consequences of a disciplinary hearing

If the allegation is one of gross misconduct, then it is very important that an employee is aware that they could be dismissed at or following the disciplinary hearing. If this is not made clear to them, the dismissal is highly likely to be procedurally unfair. If the allegation is not one of gross misconduct and a warning or some lesser sanction is being considered, then this should be made clear to the employee as well.

Not conducting the disciplinary hearing with an open mind

It is important not to prejudge any disciplinary hearing. The hearing is an opportunity for the employee to put forward their version of events. Whilst it is acceptable to challenge that version of events, employers should adopt a neutral stance asking open questions where possible and avoiding aggressive speech or behaviour. It is often helpful to ask the employee, at the end of the hearing, whether they have anything else to add. This may prevent an employee arguing, at a later date, that they did not get the opportunity to raise all of the points they wished to raise.

Failing to consider any mitigating factors before dismissing an employee

Employers often forget that, before any decision to dismiss is made, there are two things to consider if the employee has denied the allegations. The first is whether the employee is guilty of the alleged gross misconduct “on the balance of probabilities”. This isn’t a criminal burden of proof; the employer need only prove that the employee is more likely than not to have committed the act of gross misconduct. Assuming the answer to that question is “yes”, the second matter to consider is whether there are any mitigating circumstances and whether a lesser sanction is more appropriate. It is often this second stage which is missed. It may therefore serve an employer to record the two-step thought process behind the dismissal, such as in the notes of the meeting or in the dismissal letter.

Failing to use the appeal hearing as an opportunity to close any loopholes

If there have been any flaws in the original disciplinary hearing, then the appeal hearing is an opportunity to rectify this. If the original procedure leading to dismissal was very flawed, then it is usually a good idea to have a complete rehearing of the case at the appeal hearing. This could be sufficient to rectify any unfair dismissal, or at least substantially reduce any tribunal compensation, if the employer upheld the decision to dismiss after a fair appeal hearing.

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further