When Disciplinary Procedures Go Wrong (and Leave the Door Wide Open for Tribunal Claims)

BlogHR Advice Posted: Monday 21st August 2017 by

Having robust HR policies and procedures in place is essential to the employer/employee relationship. Without HR policies, there is no written guidance for employees to know what is expected of them and no back-up for the employer should things go wrong in the workplace.

However, even with strong policies in place, disciplinary procedures can still go wrong and leave employers wide open for an unfair dismissal claim. Here are some examples of when procedures are not correctly followed and can leave the employer in hot water.

Forgetting to furnish an employee with all of the evidence against them

To embark on the disciplinary journey with an employee, the accusation of wrongdoing generally needs to be more than just hearsay. In accordance with the Acas Code on Discipline, an employee should be furnished with all of the evidence against them in advance of a disciplinary hearing. They should have enough time to be able to put together a defence.

Similarly, employers should steer clear of relying on just one source of information. If there is no corroborating evidence or no evidence at all, then the employer should think carefully about continuing on a formal disciplinary route.

Failure to keep clear records

It can be a pain to ensure that every step in the disciplinary procedure is well-documented, but it is also absolutely necessary to ensure there is a detailed paper trail should an employee take your company to an employment tribunal for unfair dismissal.

As an employer, you stand the best chance of successfully defending yourself if there is clear evidence and records are kept at every step of the process.

Knowing when HR should be involved… and when they shouldn’t

In the 2016 case of Ramphal v the Department for Transport (DfT), the EAT ruled in favour of the employee, stating that he had been unfairly dismissed on the grounds that the HR function had overstepped its remit and was seen to be “pulling strings and exercising influence behind the scenes.”

Clearly, HR has an important role to play in the disciplinary procedure, but it should not be judge, jury, and executioner all at once. HR should be careful to limit advice to the law, procedure, and process, and should not unduly influence the decision of the people involved in the disciplinary action.

Delays in dealing with the disciplinary process

A disciplinary process that takes an unexplained length of time will not be looked on favourably by a tribunal. Try to wrap up the disciplinary process in a fair and reasonable timescale for all concerned. Inevitably, investigations that are more complex and reliant on external forces – such as criminal activity – will take longer.

Failing to warn employees about the possible outcome of the disciplinary process

From the very first step, employees should be aware of why the disciplinary process has been initiated, be given a fair chance to defend themselves, and know what the possible outcome could include. If an employee is not told the outcome could end in dismissal and are then subsequently dismissed, this could leave the employer open to a tribunal case.

For support with your HR polices and processes, get in touch with our HR support team.

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