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A fair procedure
[ch 10: pages 323-324]A fair dismissal requires a fair procedure. The Acas Code of Practice on discipline and grievance is a key resource for reps, who need a thorough working knowledge of it. There is Acas Guidance to accompany the Code. The Code sets out minimum principles for procedural fairness.
Breach of the Code gives tribunals the power to increase (or cut) compensation by up to 25%. The Code is intended to apply to both “performance” i.e. capability dismissals (see page 328), and “conduct” dismissals (see page 328).
The Acas Code: Disciplinary procedures
• Here are the key points in the Acas Code relating to disciplinary 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.
The Acas Code does not apply to standard redundancy dismissals, or to the non-renewal of fixed-term contracts, but it will apply to a dismissal for any of the other reasons discussed in this Chapter. The Code does apply to grievances over the manner in which a redundancy has been carried out, for example, allegations of discrimination or trade union victimisation during selection for redundancy.
Many employers, especially in the public sector, have more comprehensive procedures that go beyond 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 employer has more stages of appeal in their internal disciplinary procedure, a failure to follow all the stages can make a dismissal unfair (Stoker v Lancashire County Council [1992] IRLR 75).
The employer must not breach the duty of trust and confidence when working through a disciplinary procedure (Stevens v University of Birmingham [2015] EWHC 2300).
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).
It is an implied term of every employment contract that an investigator’s report in a disciplinary investigation will be their own work (Chhabra v West London Mental Health NHS Trust [2014] ICR 194) and that a dismissal decision will be taken by the manager appointed to take charge of the decision, without lobbying behind-the-scenes. In particular, any HR involvement should be limited to providing advice and guidance on process and procedures. The employer must 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).
More information: updated LRD booklet Disciplinary and grievance procedures — a practical guide for union reps, 2015 (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1790).