Contents The cost of getting the Disciplinary Procedure Wrong Start at the end –what is unfair dismissal –from first warning to tribunal hearing The Disciplinary Procedure –Step by step –Holding the meeting Questions & Discussion
The cost of getting it wrong The number of claims and costs 218,000 claims in 2011(April 10 – March 11) Nearly 47,900 were for unfair dismissal. Maximum compensation is £72,300 (1 st Feb 2012) Other Costs Management time, Legal fees (Ave £9k to get to hearing) Distraction to the business Sleepless nights!
What is Unfair Dismissal? An Employee has the right NOT to be unfairly dismissed To be FAIR a dismissal must: –Fall within one of the acceptable categories (conduct, capability, redundancy or SOSR) –Be substantively fair (the reason) –Be procedurally fair (the procedure followed) Most claims are lost because of the procedure (or lack of it!). An employer must act ‘Reasonably’…the procedure demonstrates reasonableness (ACAS Code) There is a qualifying period before employees can claim..
Why Follow a Procedure - if you are not going to dismiss? Not every disciplinary will end in dismissal But you have to treat every disciplinary as if it could do – or could be one of a series of warnings that leads to dismissal This will –Reduce the risk –Ensure a full and fair procedure is followed –Allow you to rely on the ‘warning’ if there are further issues –Allow you to robustly defend a claim if it is made… Also - issuing warnings without a procedure could be reason for an employee to raise a grievance.
From Warning to Tribunal FOR EACH ‘ISSUE’ Issue arises – addressed informally (improvement notice?) Warning / Dismissal –Written –Final written warning –Dismissal –OR Gross Misconduct Tribunal claim from employee (ET1) Defence from employer (ET3) Tribunal hearing Avoiding a tribunal or being able to defend a claim will depend on how well you carry out ‘the disciplinary procedure’!
The Procedure Based on ‘Reasonableness’ – the employer must act fairly The procedure will demonstrate this Natural Justice – everyone should have an opportunity to state their case. Decisions must be made on reasonable grounds Must therefore have all the facts before a decision can be made Must therefore carry out a reasonable investigation…
The Procedure - Investigation Know your facts… Gather information – records, documents, examples Speak to people (take witness statements) Speak to the employee (investigative meeting) Be prepared to carry out further investigation if needed.. Your investigation will help you decide whether to hold a formal meeting.. Have an ‘investigating officer’ where possible. Notes on investigation
The Meeting - Before Write to the employee –Confirm Time & place –Confirm it will be a disciplinary meeting –48 hours notice –Reason for disciplinary (allegations) –Evidence (from investigation). –Confirm right to be accompanied –Confirm possible consequences if you may dismiss! Example letter
The Meeting Hold the meeting –Script (introduce, confirm disciplinary, confirm right to be accompanied, confirm allegations, discuss allegations, go through evidence and ask for employees side / explanation) –Prepare any specific questions –Probe and ask questions. Challenge any inconsistencies, gather information –Take minutes during the meeting
The Meeting - After Investigate further if required (and present any new evidence to the employee before you make a decision) Make a decision based on your ‘belief’ of what happened considering all the facts Confirm decision in writing –Summarise what was discussed –Confirm sanction –Confirm any support, retraining or review dates –Confirm right to appeal Example letter
The Appeal An employee should confirm the reasons for wanting to appeal A different (and generally more senior) person should hear the appeal Set a time and date, confirm the right to be accompanied Ask the employee to present their appeal – why they believe the decision was wrong Ask questions, probe, challenge inconsistencies Be prepared to carry out further investigation (if so you may need to present this to the individuals before making a final decision) Confirm decision in writing
The Procedure FOR EACH WARNING Investigate (know you facts / investigative meeting) Invite to meeting (confirm allegations, right to be accompanied, enclose details) Hold meeting (take notes / minutes) (investigate further if required) Confirm decision in writing (and provide copy of minutes and reason) Appeal
Making a Claim If an employee makes a claim the disciplinary procedure will be scrutinised All documents will be included in the ‘bundle’ including: –How you investigated and the evidence gathered –Letters (invite to meeting and appeals, decision) –Notes from meetings The procedure will be challenged as a dismissal can be found to be unfair if the correct procedure is not followed.
What makes a dismissal Substantively fair One of the biggest defences is “I didn’t know, I wasn’t told” The employee must be aware of the possible consequences of their conduct / poor performance / capability. You can communicate this in your disciplinary procedure (what is gross misconduct) and in policy documents. If the conduct is not listed (in disciplinary procedure) as being a dismissible offence – it is likely to be seen as unfair to dismiss the employee – as they did now know it was serious enough (substantive enough) to warrant dismissal! Disciplinary Procedure – Gross Misconduct Policy Documents – Gross misconduct
Examples and Scenarios What situations are you currently facing?
Summary Following a ‘fair’ procedure will –Protect you –Save you time and money (in the long run) –Ensure you act fairly –Send a clear message to employees (maintain standards etc) Investigate, investigate, investigate Never dismiss on the spot – as you need to investigate! If in doubt suspend – and then investigate!