Disciplinary procedures

Since 2009, disciplinary procedures must meet at least the minimum requirements set out in the revised Acas Code of Practice (the Code). As well as the Code, Acas issued fresh guidance on dealing with discipline and grievances at work. Both are free to download from the Acas website.

Breach of the Code gives tribunals the power (but not the obligation) to increase (or cut) compensation by up to 25%. Breach of the guidance (as opposed to the Code itself) may well make a dismissal unfair, but it will not trigger the power to make a percentage increase or cut to compensation. The Code is intended to covers both “performance” and “conduct” issues.

The Code does not apply to redundancy dismissals or to the non-renewal of fixed-term contracts. There is a separate Acas Guide to redundancy handling as well as a newly published guide, How to manage collective redundancies, March 2013 (see Chapter 11).

These are the main features of the Acas Code relating to disciplinary hearings:

• discipline rules should be reduced to writing and be clear and specific;

• size and resources of the employer are important: more is likely to be expected of larger than smaller employers;

• issues should be dealt with promptly and unreasonable delay should be avoided. Investigations, in particular, must be carried out before memories fade. Delay can result in stress and anxiety for all concerned;

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

• any suspension should always be with pay and be as brief as possible. Suspension should not be an automatic step in all cases of gross misconduct. Employers should bear in mind, in particular, the distressing impact of suspension on employees. (See Crawford v Suffolk Mental Health Partnership ([2012] EWCA Civ 138);

• employers should act consistently and carry out any necessary investigations to establish the facts;

• employees should be informed of the basis of the problem and given the chance to put their side of the story before any decisions are taken. They should be given enough advance notice to have time to prepare their case and discuss the issues with a rep, and be sent copies of any material, including witness statements, relied on by the employer, normally with the meeting notification;

• employees should be given 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 have a right to be accompanied to any formal disciplinary meeting (see below); and

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

The Code sets out minimum procedures that must be followed. Many employers (especially public sector employers) have more comprehensive procedures. Failure to follow an internal procedure is likely to make a dismissal unfair. In particular, where an employer has more stages of appeal in an internal disciplinary procedure, a failure to follow all of those stages may make a dismissal unfair (Stoker v Lancashire CC [1992] IRLR 75).

It is important to note that a procedurally unfair dismissal will not necessarily result in a significant award of compensation. This is because the tribunal may conclude that the dismissal would probably have taken place anyway, had a fair procedure been followed. The well known case of Polkey v Dayton Services Limited ([1987] IRLR 503) established that where an unfair procedure has been used, a tribunal can reduce the compensation awarded to reflect the probability that dismissal would have taken place in any event if a fair procedure had been followed. In these circumstances, compensation is likely to be limited to lost earnings for the amount of time it would have taken to complete a fair procedure — which is often a matter of weeks.

There is no absolute right to cross-examine witnesses, but in some circumstances it is unreasonable for an employer to refuse a request to cross-examine. In TDG Chemical v Benton (UKEAT/0166/10), an employee sacked for allegedly mouthing a racist comment at a workmate during an onsite collision was unfairly dismissed when his rep was denied the right to cross-examine the other worker. The grave implications of a dismissal for making a racist comment meant the standard of investigation had to be particularly high and cross-examination should have been allowed.

If the employer has based its case on allegations by employees who want to remain anonymous, the tribunal should consider, as part of its overall assessment of fairness, whether these sources should have been revealed. At the very least the substance of the allegations must be put to the employee. The EAT has held, in Pudney v Network Rail Infrastructure Ltd (EAT/0707/05), that it is unreasonable to dismiss an employee on the basis of material not disclosed to them or on which they do not have the opportunity to comment.

Where employees insist on anonymity, Acas encourages employers to look for corroborative evidence and to ask themselves questions about the possible motivation of the various participants.

The Acas guidance reminds employers of the importance of an open mind and of investigators looking for evidence both for and against the likelihood that an employee committed the misconduct. Relevant considerations are likely to include whether the employee made any admissions, and whether the allegations are supported by contemporaneous hard evidence, such as emails or CCTV.

A proper investigation may be held to have been carried out even if not all the evidence has been examined, as long as the tribunal finds that the investigation as a whole was fair and that the employer acted reasonably in dismissing the employee (Abbey National v Morgan EAT/0403/03).

It is not usually within the range of reasonable responses for an employer to refuse to carry out further investigations which would support the account of an employee accused of misconduct:

The more serious the potential consequences of a charge for the individual, the higher the standard of investigation and procedural fairness a tribunal will expect. In Salford Royal NHS Foundation Trust v Roldan ([2010] IRLR 721), a Filipino nurse was accused of mistreating a patient, based on the evidence of a colleague. The fact that her dismissal for gross misconduct spelled the end of her nursing career, the loss of her work permit and deportation meant that a particularly high standard of care was needed.

Similarly, in Crawford v Suffolk Mental Health Partnership ([2012] EWCA Civ 138), a nurse was unfairly dismissed following an allegation that she used inappropriate restraint methods on an elderly dementia patient. A key reason why the dismissal was unfair was because the hospital conducted a staged reconstruction of the incident without inviting the claimant and her representative.