Disciplinary procedures 





A fair dismissal always requires a fair procedure. The Acas Code of Practice on discipline and grievance procedures is a key resource here. There is also accompanying Acas guidance. The Code sets out minimum principles for procedural fairness. Breach of the Code allows tribunals to increase (or cut) compensation by up to 25%. The disciplinary standards in the Acas Code apply to any internal procedure that could result in a disciplinary outcome, for example, lost pay, any formal warning or a disciplinary dismissal.



The Acas Code on disciplinary procedures does not apply to standard redundancy dismissals, or to the non-renewal of fixed-term contracts. However, the section of the Code that concerns grievances (see page 338) will normally apply to a grievance over the way in which a redundancy has been carried out, for example, allegations of discrimination or trade union victimisation during selection for redundancy.





The Acas Code on disciplinary procedures does not apply to dismissals for “some other substantial reason” (Phoenix House v Stockman [2016] UKEAT/0264/15/DM).
See page 353.



The Acas Code on disciplinary procedures does not apply to capability dismissals that concern only the question of whether an employee is too sick or injured to be able to do their job (Holmes v Qinetiq Limited [2016] UKEAT/0206/15/BA). However, the Code will apply whenever there are allegations of blameworthy behaviour linked to sickness absence, for example, that sickness is not genuine, or that an employee fraudulently claimed sick pay.
The Acas Code also applies to any capability dismissal that involves allegations of poor performance, based on failure to meet minimum standards at work. In summary, the Acas Code on disciplinary procedures applies to any case in which an employee’s alleged actions or failures involve conduct or performance that requires “correction or punishment”.






Here are the key points in the Acas Code relating to disciplinary rules and hearings:



• disciplinary rules should be in writing;




• disciplinary rules must be clear and specific;




• issues must be dealt with promptly and without unreasonable delay;




• employers must carry out all necessary investigations to establish the facts;




• investigations should be carried out before memories fade;




• in misconduct cases, different people should conduct the investigation and disciplinary hearing;




• any suspension should be with pay and be as brief as possible;




• employers must act consistently;




• employees must be informed of the basis of the problem and given their chance to put their side of the story before decisions are taken;




• employees should get enough advance notice to have time to prepare and to discuss issues with their rep;




• employees should get a reasonable opportunity to ask questions, present evidence and call witnesses, and to raise points about witness evidence. The employer should confirm in advance the names of any witness it intends to call;




• employees should be sent copies of all material, including witness statements, relied on by the employer, normally with the notification of the hearing;




• there is a statutory right to be accompanied, which should be explained;




• there must be a right of appeal, which must be properly explained.




Many employers, especially in the public sector, have more comprehensive procedures that exceed the basic requirements of the Acas Code. An employer’s failure to follow a more demanding internal procedure is likely to make a dismissal unfair. In particular, where an internal procedure has more stages of appeal, a failure to follow every stage can make a dismissal unfair (Stoker v Lancashire County Council [1992] IRLR 75). If a procedure is contractual, an employee may be able to secure an injunction to force an employer to follow it (West London Mental Health NHS Trust v Chhabra [2013] UKSC 80). 
 





There are also important implied contract terms (see Chapter 3). An employer must not breach the duty of trust and confidence when working through a disciplinary procedure. For example, in Stevens v University of Birmingham [2015] EWHC 2300, it was a breach of the implied duty of trust and confidence not to allow the employee to be accompanied to the investigation meeting by his companion of choice.



An employer need not investigate every single line of defence put forward by the employee, but the overall investigation must be reasonable (Shrestha v Genesis Housing Association Limited [2015] EWCA Civ 94).





Except in a very small organisation, if the same person acts as investigating, disciplining and dismissing officer the investigation is likely to be unreasonable and the dismissal unfair. A dismissal can also be unfair if the dismissal decision-maker interferes with the investigation process (Ethnic Minorities Law Centre v Deol [2015] UKEATS/0022/14/SM).





In general, a dismissal will not be unfair because an investigation was too thorough or excessive (City and County of Swansea v Gayle [2013] UKEAT/0501/12/RN), but sometimes an overzealous investigation can point to other kinds of unlawful behaviour, such as discrimination or trade union victimisation. 




It is an implied term of every employment contract that the investigator’s report is their own work (Chhabra v West London Mental Health NHS Trust [2014] ICR 194) and that any dismissal decision will be taken by the dismissing officer without lobbying or interference “behind-the-scenes”, for example, by HR or by senior managers (Dronsfield v University of Reading [2016] UKEAT/0200/15/JOJ). HR involvement should be limited to advice and guidance on procedures and not, for example, changing the content of the report. The employer should tell the employee about any external representations that go beyond legal advice or advice on process and procedure (Ramphal v Department for Transport [2015] UKEAT/0352/14/DA). 



The more serious the potential consequences for the individual, the higher the standard of investigation and procedural fairness expected. For example: 





The Acas guidance on discipline and grievance procedures emphasises that investigators must keep an open mind and look not just for evidence pointing to guilt but also innocence. This is especially the case where someone is suspended and may have been denied the chance to contact potentially relevant witnesses (A v B [2003] IRLR 405). Allegations of dishonesty require particularly rigorous investigation. In Miller v William Hill Organisation Limited [2013] UKEAT 0336/12/2106, bookmakers William Hill wrongly accused one of their counter staff of dishonesty. The dismissal was unfair in part because management only viewed the segments of CCTV footage that supported their preconceived version of events, instead of watching the whole footage. 


Dismissing someone to make an example of them to deter others is unfair (Leeson v Makita Manufacturing Europe [2001] All ER 345).