When it comes to following procedures, a company’s disciplinary process is the one area that can all too easily be picked apart by employees or third-party representation looking for procedural flaws.
A multitude of unfair dismissal cases have boiled down to decisions going in favour of employees over simple procedural flaws carried out by a company who may have overlooked the smaller aspects of a good disciplinary procedure.
Dismissal
This can never be more evident than when it comes to the dismissal stage following warnings. When we get to this stage we would hope that any breach of conduct by an employee on a final warning would mean they have signed their own dismissal notice. However, this isn't always the case as procedural flaws along the way can shake the foundations of a disciplinary process built on solid conduct issues by the employee. The case of Keane v Mr Ambrose Congreve (1999) adds depth to this point as this case showed that regardless of warnings being issued, a tribunal can criticise the handling and management of the warnings given and the justification that they would lead to a dismissal. In this case the tribunal determined the dismissal was unfair and awarded the appellant £8,000. From a consultant’s point of view, the immediate area for consideration when speaking with a client who's looking to dismiss an employee who's on a final warning is the simple question – were all the warnings active at the time of issue? But more importantly, is the final warning still live on the employee's file?
The importance of evidence
The next key question we would ask the client is – is there evidence of all the warnings given? Again, cases can be lost on a lack of evidence of warnings, in particular the verbal warning which by its very nature can be difficult to prove. This is why we insist on verbal warnings actually being tracked on paper.
Employees can for obvious reasons be confused by receiving a verbal warning in written form, but the easiest way to clarify this confusion is that the paper aspect is purely for tracking purposes, so the warning can be recorded properly. Francis v Murray, Scissor Blade’s Beauty (2000) highlighted the importance of this when the claimant conceded that she was late for work due to traffic, but that another employee had the same issue and never received verbal warnings. The respondent claimed seven warnings had been given, which the claimant disputed but accepted one written warning had been given. The employer lost the case on the balance that only one written warning could be proved.
The EAT case of Zinenko vs Cappell Hill Stores (2007) is another example, where the claimant was successful in a claim for unfair dismissal as the EAT were unsatisfied that verbal warnings had actually taken place.
Right to appeal
Another key area to consider in a dismissal following warnings is the right to appeal. All too often employers will focus solely on getting the investigation and outcome resolved as quickly as possible. This could lead them to overlook the fact that the person who is listed as hearing any possible appeal of the decision must be someone who is at the same or higher level than the deciding officer (i.e. is without influence by the deciding officer). This is so that an unbiased appeal review can be given by someone who was not involved in the disciplinary itself. Best practice would say that a line manager would deal with the issue at the informal investigation, a manager would then take over to do the disciplinary hearing and outcome, and a Director/Owner/CEO can be left to hear any appeal. While it may seem an afterthought at times, the appeal option is an area a lot of clients will fall down on and a tribunal will look favourably on any dismissal decision that was given a procedurally sound appeal option.
Importance of warnings
Skipping levels of warning can also be considered a potential pitfall for employers. If warnings do amount to dismissal for the employee, and the company has skipped stages of their own process (i.e. jumped to written warning instead of issuing a verbal warning first), then the company will have to stand over this should the reason to skip a level of warning come into question. The best approach to combat this would be, if an employee was indeed given a potentially questionable high-level warning, to then give consideration on any minor conduct issues which may arise while that final warning is active. Consideration being given on some minor issues before a dismissal arose would then give the employer the best defence of their questionable final warning.
Hold onto your minutes
As with all disciplinary stages, signed minutes are also a vital factor to ensure that all meetings which led to the dismissal can be proven as an accurate account of the discussions. Short service aspect (i.e. under a year of service) should also be taken into account as most employers would have embedded in their disciplinary policy that they can vary their levels of warning up to and including dismissal when an employee has short service.
In conclusion
Dismissals following warnings will always be one of the most contentious areas in employment law, but essentially an employer should look to reduce the potential for an unfair dismissal claim by stringently following their own disciplinary procedures, being able to clearly justify warning outcomes beyond reasonable doubt, ensure minutes kept as an accurate account of all discussions, and also bearing in mind the legal term “Contra Proferentem” which means that when a decision is in doubt, a tribunal will often side with the employee.
Remember, the difference between reaching a sound decision following a proper disciplinary procedure could be up to two years’ salary in an unfair dismissal claim against the employer.
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If you would like further complimentary advice on disciplinary procedures from an expert, our advisors are ready to take your call any time day or night. Call us on 0818 923 923 or request a callback here.
