Apologising

Where appropriate, apologising, acknowledging an error, cooperating and indicating willingness to learn from mistakes can help avoid a dismissal. Any apology should be taken into account by the employer when deciding whether dismissal is within the “band of reasonable responses” for the misconduct (see Chapter 9: Possible arguments to use in mitigation).

Reps should discuss possible outcomes with the member before the meeting and establish, in particular, whether s/he would be willing to accept a lesser sanction to avoid dismissal. For example, in Whitham v Club 24 Limited (t/a Ventura ET/1810462/10, unreported), a tribunal decided that a dismissal for posting comments on Facebook was unfair in part because a reasonable employer would have offered demotion as an alternative to dismissal, and there was evidence that the employee would have accepted this.

Just because other possible sanctions are not included in the disciplinary procedure or the employment contract, this does not stop the employer offering and the employee accepting these as an alternative to dismissal (see Chapter 9: Disciplinary penalties).

Some of the most common disciplinary situations in which reps become involved include allegations of poor performance, ill-health and intermittent absence. Each case will depend on its own facts but some of the possible arguments reps may be able to use in these situations are set out below.