Disciplinary procedures

The Acas Code of Practice on disciplinary and grievance procedures sets out minimum standards that must be followed (see box page 280 for the main points relating to disciplinary procedures). 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 can make a dismissal unfair (Stoker v Lancashire CC [1992] IRLR 75).

In some circumstances, an employee may be able to get an injunction to require an employer to follow a contractual disciplinary procedure (West London Mental Health NHS Trust v Chhabra [2013] UKSC 80). However, contractual disciplinary procedures are rare outside the public sector, and in any event courts rarely intervene.

An employer carrying out an investigation is not required to reach a criminal standard of proof. All that is needed is a genuine belief on reasonable grounds. The tribunal is not allowed to reopen the investigation to decide whether the employee was actually guilty, or to substitute its view for that of the employer (London Ambulance Service NHS Trust v Small [2009] IRLR 563).

The more serious the potential consequences for the individual, the higher the standard of investigation and procedural fairness expected. 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. Her dismissal for gross misconduct spelled the end of her nursing career, the loss of her work permit and deportation, so a particularly high standard was required.

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 to attend.

The Acas Guidance underlines the duty on investigators to keep an open mind and to look not just for evidence pointing to guilt but also innocence. Allegations of dishonesty call for particularly rigorous investigation. In Miller v William Hill Organisation Limited [2013] UKEAT 0336/12/2106, the bookmaker wrongly accused one of its counter staff of dishonesty. The dismissal was unfair, in part because they only viewed the segments of CCTV footage that supported their preconceived notion of events, instead of watching the whole footage.

There is no rule that a “too thorough” investigation can make a dismissal unfair. In City and County of Swansea v Gayle [2013] UKEAT/0501/12/RN, a council employee working from home was found to be playing squash regularly during working hours while pretending to be working. After a tip off, the employer engaged private investigators who filmed him leaving the sports centre during working hours every Thursday for six weeks. His dismissal for gross misconduct was judged fair. In particular, the onerous nature of the investigation and heavy handed use of private investigators did not make the dismissal unfair. In the same case, the EAT ruled that a failure to follow the Information Commissioner’s Employment Practices Data Protection Code will not make a dismissal unfair. The Code has the status of guidance only. Employers are not bound to follow it and tribunals are not required to take it into account.

The human right to respect for private and family life (Article 8 of the European Convention on Human Rights) is engaged by an employer’s decision to carry out covert surveillance (McGowan v Scottish Water [2005] IRLR 167), but not normally when the employee is in a public space and can have no reasonable expectation of privacy (City and County of Swansea v Gayle [2013] UKEAT/0501/12/RN). This issue arises most frequently in the context of investigations into sick pay and time recording (see Chapter 7).

Even if Article 8 is triggered by the use of covert surveillance, an employer can justify its behaviour if it can show that its use of surveillance was a proportionate means of achieving a legitimate aim. The “legitimate aim” relied on by the employer is usually fraud prevention. Behaviour is more likely to be regarded as proportionate if it is:

• limited in time (e.g. just one week);

• based on legitimate suspicions of grave and serious concerns;

• alternatives to surveillance have been considered;

• staff have been warned of the possibility of covert surveillance.

There is no absolute right to cross-examine witnesses, but in some circumstances it can be unreasonable for an employer to refuse a request. In TDG Chemical v Benton UKEAT/0166/10, an employee accused of mouthing a racist comment at a workmate during an on-site 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 seek out corroborative evidence and to ask themselves questions about the possible motivation of the various participants.

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 to reflect the probability that dismissal would still have happened even 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.