Your rights in disciplinary action

discipline

What is disciplinary action?

Paragraph 1 of the ACAS Code on Discipline and Grievance Procedures says that, “Disciplinary situations include misconduct and/or poor performance”. Disciplinary action is taken by your employer to hold you accountable or responsible for your actions or failure to act. It can be about your conduct in the workplace, your performance, or both. Discipline can lead to sanctions such as a warning that remains on your work record for a specified period or dismissal. It all depends on the seriousness of your action or failure to act, as well as how that impacts on the trust and confidence that your employer has in you.

The ACAS Code says that a Criminal Offence should not of itself lead to disciplinary action. Your employer should consider whether a charge or conviction will have an impact on your ability to do your job, whether it affects your relationship with your employer, customers or colleagues. It is only if there could be a negative impact that disciplinary action would be justified.

 

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DOCUMENTS, FORMS AND LETTER TEMPLATES

 

What rights do I have?

The disciplinary procedure must contain the following processes in accordance with rules of natural justice. ACAS defines natural justice as the basic fundamental principles of fair treatment. These principles include the duty to give someone a fair hearing; the duty to ensure that the matter is decided by someone who is impartial; and the duty to allow an appeal against a decision.  If your employer’s procedure misses any of these elements it will be unfair and your employer will be liable in the Employment Tribunal.

  1. An Investigation – To establish the facts of the case
  2. Notify you of the problem – Through a notice of disciplinary action
  3. Disciplinary Hearing – To give you an opportunity to respond
  4. Representation – Your right to be accompanied at the disciplinary hearing
  5. Disciplinary Sanctions – It is only after completing the above that your employer can decide on appropriate disciplinary action
  6. Appeal – After the appropriate disciplinary action has been decided you must be given an opportunity to appeal the decision.

Section 1(1) of the Employment Rights Act 1996 (ERA 1996) requires your employer to outline the disciplinary rules and procedures that apply to the job in your written statement of the terms and conditions of your employment within 2 months of you starting the job. This is known as a Section 1 statement. S3 (1) ERA 1996 says that the Section 1 Statement must include the disciplinary rules and procedure which apply to your employment. The written statement can refer you onto your employer’s full, written Disciplinary Policy.

In any disciplinary process, your employer has to follow the law, ACAS Code of Practice on Disciplinary and Grievance Procedures (the Code), and your employer’s own policies and procedures.  Paragraphs 5 to 29 of the Code deal with disciplinary proceedings and establish the standards that an Employment Tribunal will look out for in deciding whether an employer has acted reasonably in dismissing or disciplining an employee. Employment cases have allowed the courts to expand further on these standards.

Section 94 ERA 1996 gives you the right not to be unfairly dismissed. The Code goes hand in hand with Section 98 ERA 1996 which allows your employer five reasons to discipline or dismiss you. In selecting any of these reasons your employer must act fairly, and provide evidence of acting fairly. Your employer is expected to tell the Tribunal why they picked that particular reason under section 98 ERA 1996, the policy and procedure used in coming to the conclusion that the reason was one which fell under section 98 ERA and that they used the directions of the Code to help them come to a fair decision.

If you tell the Employment Tribunal that your dismissal was unfair (through your Employment Tribunal ET1 claim), under section 98(4) the Employment Tribunal must consider whether in the circumstances, including the size and administrative resources of your employer’s business, your employer acted reasonably in treating it as a sufficient reason for dismissing you. This includes considering whether your employer properly applied the provisions of the Code.

What options do I have?

If you are going through a disciplinary or capability process which you believe is unfair, you can raise a grievance about it during the proceedings. If you have already been dismissed you should write a Letter before Claim to your employer, and get in touch with the free ACAS Early Conciliation Service. They will help you address the issue with your employer. If ACAS Conciliation is unsuccessful, ACAS will give you a Conciliation certificate. It is only after you have received a Conciliation Certificate that you can file a claim in the Employment Tribunal. Don’t forget the strict 3-month time limit for filing tribunal claims. If you have more than two years service, you can claim unfair dismissal. If not, you should look at the Automatically Unfair reasons for dismissal, as well as the other grounds including wrongful dismissal under which you can sue your employer depending on the facts of your case. Get in touch with us if you have questions about your case.

Your Employers Duty to Act Reasonably 

The duty to act reasonably is a legal duty laid out in Section 98 (4) of the Employment Rights Act 1996. This is the reasonableness test which says that the duty to be reasonable should be decided in accordance with equity and the substantial merits of the case. Equity means natural justice, procedural fairness, an employee’s personal circumstances, common sense and common fairness. Substantial merits means a consideration of whether your behaviour or performance warranted dismissal.

An Employment Tribunal is not like an appeal of your disciplinary case. The tribunal will not consider whether you were actually guilty of the misconduct, but whether your employer believed and had reasonable grounds for believing that you were guilty of the misconduct at the time the decision was made. The employment tribunal makes its decision by considering the following;

  1. Reasons – Did the reasons for dismissing you fall within the categories in S98 ERA 1996?
  2. The Reasonableness Test

Reasons for dismissal

First the Reason has to fall within the categories in S98 of the Employment Relations Act 1996. This provides five potentially fair reasons for dismissal. These are;

  • Your lack of capability or qualifications to your job.
  • Gross Misconduct or repeated Misconduct.
  • Redundancy.
  • A legal bar or requirement which means that you cannot do the job.
  • Some other substantial reason.

Your employer can discipline and dismiss you in all the categories except Redundancy. Your employer does not have to follow the ACAS Code in Redundancy, but if your employer cannot prove that it is a true redundancy, then it will be an unfair dismissal.

 

IF ITS NOT THERE, THEN ITS NOT FAIR

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What is the Reasonableness Test ?

The Reasonableness Test is sometimes called “the band of reasonable responses” and is set out in S98 (4) of the Employment Rights Act 1996. To be reasonable, your employer must carry out a reasonable investigation of potential disciplinary matters without undue delay to establish the facts of the case. The requirements of a reasonable investigation was explained in the case of British Home Stores v Burchell (1978). This is known as the Burchell Test. It says that to show that they acted fairly in dismissing, an employer must prove that at the time of the dismissal;

  1. The employer had a genuine belief in the employee’s guilt.
  2. There were reasonable grounds for that belief.
  3. At the time it held that belief, the employer had carried out as much investigation as was reasonable in the circumstances.

It is the result of the investigation that will prove that your employer had reasonable grounds for believing that you were guilty, and the decision must be made on “the balance of probabilities”.

The Balance of Probabilities

Your employer will appoint an investigator to look at the facts and decide whether the things you are accused of actually happened. To do this, the investigator has to consider the facts and any evidence that will help clarify whether the allegations are true or not. The amount of evidence required is known as the “standard of proof”. There are generally two standards of proof;

Beyond reasonable doubt – this is what is used in a criminal investigations and will involve a detailed and forensic analysis of evidence such as analysing samples and DNA testing and suchlike

The Balance of Probabilities – this is what is used in civil cases and is lower than “beyond reasonable doubt”. It means that in considering all the facts and the evidence in support of the facts, something is more likely than not to have occurred, or it is more likely than not that the incident did not occur.

The “balance of probabilities” is the standard of proof that is required to decide whether there is enough evidence to substantiate the allegations against you in a disciplinary investigation. Your employer must come to their decision on “the balance of probabilities”. Your employer is not required to do any deep forensic analysis as the police would do in a criminal case.  This task of proving or disproving is commonly described as “the burden of proof”. If the probabilities are equally balanced then your employer has not satisfied the burden of proof. In some serious cases, such as allegations of sexual misconduct, or fraud the standard may be closer to the criminal standard because of the type of allegation.

In a family law case, [Re B [2008] UKHL 35], Lord Hoffman explained the balance of probabilities in the following way, using a mathematical analogy;

“If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.”

 

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What is a Fair Procedure?

The requirements of a fair procedure are laid out in case law, the ACAS Code of Practice on Disciplinary and Grievance procedures, your employment contract (or collective agreement) and your employer’s internal disciplinary procedure. The Duty to be reasonable and the Duty to follow a fair procedure go hand in hand. They both have to be satisfied.

 

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 Can I be disciplined twice for the same offence?

Yes you can. The Employment Appeal Tribunal said that there is no concept of double jeopardy in internal disciplinary proceedings. In Christou & Anor v London Borough of Haringey[2011] the Employment Appeal Tribunal was asked to consider whether an employer could put an employee through a second disciplinary procedure for the same offence on the grounds that the original hearing did not impose a serious enough offence.

Ms Ward was the social worker responsible for Baby P. Ms Christou was her supervisor, who Sharon Shoesmith had promised would not lose her job over the death of Baby P. Both employees were put through the disciplinary procedure. In the first disciplinary hearing Ms Christou and Ms Ward received written warnings.

After the media storm, the OFSTED inspection and the sacking of Sharon Shoesmith, the new Director of Children’s Services regarded the first disciplinary proceedings as unsafe, unsound and inadequate, and he took issue with the use of the simplified procedure. He felt that the more serious matters had not been properly investigated and there were grounds to start new disciplinary proceedings. After the second disciplinary proceedings, Ms Christou and Ms Ward were fired.

They complained to the Employment Tribunal which said that they had been fairly dismissed, so they appealed. At the Employment Appeal Tribunal (EAT) they said that it was impermissible and unfair to dismiss them for a disciplinary offence for which they had already been warned. The EAT did not agree with them and said that the dismissals were fair. There is no concept of double jeopardy in internal disciplinary proceedings. It would be unusual to hold a second disciplinary hearing arising out of the same facts but this was a rare case and the employer’s actions were fair in the light of the media spotlights and the new management regime which took a different view of the seriousness of their conduct.

 

 

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Disclaimer

This resource is published by Employee Rescue Limited. Please note that the information and any commentary on the law contained herein is provided for information purposes only. The information and commentary does not, and is not intended to, amount to legal advice. Employee Rescue accepts no responsibility for any loss occasioned to any person acting or refraining from action as a result of the material contained in this publication.

Further specialist advice should be taken before relying on the contents of this publication. You can send an e-mail to thelawyers@employeerescue.co.uk for such specialist advice if required.
 

 

Case Study

Westlake v ZSL London Zoo (2015) An employment tribunal ruled that a London Zoo meerkat handler who got into a Christmas party fight with a monkey specialist over their love rivalry for a llama keeper was unfairly dismissed, however she received nothing in compensation.  The employment tribunal said that two zookeepers who got into a fight at London Zoo’s Christmas party should have received the same disciplinary sanction. At London Zoo’s Christmas party, zookeeper Ms Westlake got into a fight with a colleague, Ms Sanders. The fight appeared to originate over another zookeeper Mr Davies, Sanders’ former boyfriend who was... Read More
Westlake v ZSL London Zoo (2015) An employment tribunal ruled that a London Zoo meerkat handler who got into a…Meerkats v Monkeys
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