6. Disciplinary outcomes

[ch 6: page 68]

After the disciplinary hearing, the employer must decide whether to take disciplinary action, and should inform the employee in writing (Acas Code, para 18).

The decision should be taken based only on allegations and evidence that have been put clearly to the member in advance of the meeting and on which they have been given the opportunity to put their side of the story. If this has not happened and the employee is dismissed, it is likely to be unfair.

The decision must be that of the decision-maker only, without improper influence, for example, from HR (Rampthal v Department of Transport [2015] UKEAT/0352/14/DA) or from senior managers outside the proper decision-making process (Commissioner of Police of the Metropolis v Denby [2017] UKEAT/0314/16/RN).

The employer must decide whether disciplinary action is reasonable in the circumstances and if so, what form it should take. The Acas Code reminds employers that penalties must be proportionate to the offence. This should take account of any mitigation (see page 63).

A good disciplinary procedure will specify exactly what penalty can be imposed and for how long and the employer should follow this. This ensures that the employee knows the likely outcome and also promotes consistency in the employer’s approach.

What is an appropriate penalty will depend on both the severity of the conduct or lack of capability, and whether it is the first or repeated instance.