Disciplinary and dismissal
Your employer will need to follow a fair dismissal and disciplinary process if they want to avoid the risk of a claim of unfair dismissal.
Minor issues will usually be resolved informally between you and your manager. Sometimes a note of the discussion will be kept on your personnel file. As it is informal, this will usually be ignored in any future disciplinary hearings.
If you face more serious allegations, your employer may decide to make the process formal and will usually follow the ACAS Code of Practice (‘the Code’). The Code is the benchmark for good practice.
If you are facing an allegation, the sooner you take expert advice, the more chance there is of it being nipped in the bud.
Key points of the code
The Code is not legally binding – so, a failure to follow it will not result in an automatic penalty. However, Employment Tribunals take the Code into account and if there is no justifiable reason why it has not been followed, they are more likely to decide you have been unfairly dismissed.
Tribunals can increase your award of damages by up to 25% if your employer has not followed the Code. Similarly, if you breach the Code – such as unreasonably not starting a grievance before resigning and claiming constructive dismissal – your damages can be reduced by up to by 25%.
At the centre of the Code is the importance of dealing with issues fairly. In particular:
- Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings or making a decision
- Both sides should be consistent
- Employers should carry out any necessary investigations, to establish the facts of the case
- Employers should inform you of the basis of the problem and give you an opportunity to put your case before a decision is made.
- You should be allowed to be accompanied at a formal disciplinary meeting
- You should be given the right to appeal a decision if you are unhappy with it
Is there always an investigation?
Your employer should carry out an investigation into an allegation without unreasonable delay, to establish the facts of the case. Ideally, the investigation and then the disciplinary hearing should be carried out by two different people.
The amount of investigation required will depend on the nature of the allegations and will vary from case to case. It could involve interviewing and taking statements from you and any witnesses. If it is necessary to have a meeting with you within the investigation process, such a meeting should not form part of the disciplinary process.
If there is a disciplinary case for you to answer, you should be notified in writing with enough information of the problem along with details of the disciplinary hearing. The hearing should be held without unreasonable delay and allow you a reasonable amount of time to prepare your case.
What if I am too ill to attend a hearing?
If you are off sick, your employer will usually postpone the hearing. However, they are not expected to put it off indefinitely.
If you are persistently unable or unwilling to attend a disciplinary hearing without good cause, your employer will make a decision at a hearing in your absence on the evidence available.
Your employer should only proceed to a hearing if they have exhausted other avenues such as inviting you to make written submissions if you cannot be present, or trying to obtain an occupational health report on your ability to participate. They should not go ahead in your absence without a good reason to do so.
What happens at a hearing?
We can help you to prepare for the hearing. The longer we have to prepare you, the more chance you have of properly defending yourself.
When the hearing starts, your employer will explain the reason for the hearing and go through the evidence against you.
You will be allowed to answer any allegations, ask questions, present evidence and call relevant witnesses before your employer makes a decision.
Can I take someone with me to the hearing?
You have a general right to be accompanied to the disciplinary hearing. The law provides that after a reasonable request, you must be allowed to be accompanied by either a trade union representative or one of your colleagues. In some circumstances you can take a solicitor – but it depends on your job and the status of the disciplinary hearing.
Your companion must be permitted to address the hearing and put your case, sum up the case and respond on your behalf to any view expressed at the hearing. He or she must also be permitted to confer with you during the hearing. However, they do not have the right to answer questions on your behalf.
What happens after the hearing?
After the meeting your employer should inform you in writing if disciplinary action is to be taken. For misconduct or poor performance reasons, employers usually give a first and then second final written warning, otherwise the dismissal could be unfair.
If you are dismissed, the decision should be taken by a manager with the right authority.
You have the right to appeal in writing against disciplinary action taken against you. Appeals should be heard without unreasonable delay, and be dealt with impartially by a manager who has not previously been involved in the disciplinary. Employees should be informed in writing of the appeal hearing result as soon as possible.
We can help you with your appeal.
What if there are delays during the disciplinary process?
The process should be dealt with in a matter of weeks, and excessive delays in the proceedings will always be frowned upon by Employment Tribunals. However, complex or difficult cases will inevitably take longer.
Can the same manager investigate the disciplinary and carry out the hearing and appeal?
Ideally, different people should carry out the investigation, disciplinary hearing and appeal stage, although Tribunals recognise that this will not always be practicable, particularly for small employers.
Is it better for me to resign before being fired?
In some circumstances, yes. You can read more about resignation here. You need expert advice before making this important decision.
Am I entitled to written reasons for my dismissal?
If you have at least two years’ service then you have the right to request written reasons for your dismissal. Your employer has 14 days to reply to the request. A Tribunal can award you damages if your employer does not comply.
If you are dismissed during pregnancy or maternity leave, you have an automatic right to a written reason without having to request it, regardless of your length of service.
If your employer has not followed a correct process or you think the decision was wrong, you may have a claim for unfair dismissal. Call us today on 08000 614 631 for free, in confidence and without any obligation.
What do I do now?
This is where we come in. Employment law is all we do.
It can often feel like your employer holds all the power. They will likely have experienced HR professionals or a solicitor working in the background. That’s why you need the best support and advice available. You need a specialist employment lawyer – one who will push for the best outcome for you.
We understand how it feels. We have helped hundreds of employees and because we act for businesses too, we know the tactics you’re likely to face from your employer. We know all the tricks in the book.
You only have a limited amount of time to take action to preserve your employment rights – usually just three months (less one day) from the date your employment ends.
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