WHY DO EMPLOYERS USE DISCIPLINARY MEASURES?
Employers may invoke a disciplinary procedure for a number of reasons. These can include, but are not limited to:
- Poor performance
- Unsatisfactory levels of attendance
- Poor timekeeping
The outcome of these disciplinary hearings can range from an initial informal warning to summary dismissal in the most serious of cases. Whatever the circumstances, if you are involved in disciplinary proceedings, it is important that you understand your rights and obligations.
WHAT YOU SHOULD KNOW
There are a number of factors that are useful for you, as the employee, to understand:
- employees have the right to be accompanied by a colleague or trade union representative at a disciplinary meeting, but not necessarily at an investigatory meeting.
- an employer is entitled to set minimum standards for conduct, performance or attendance and to invoke its disciplinary procedure if you fall below those standards.
- if an employer asks you to attend a disciplinary meeting, it should conduct that meeting in accordance with the ACAS Code of Practice on Discipline and Grievances and with reference to the ACAS guidance in this regard.
- if you are dismissed for misconduct, whether or not that dismissal is fair will depend on whether or not your employer has carried out a full investigation, given you full details of and the opportunity to respond to the allegations against you, reached a reasonable and genuine decision that you are guilty of the misconduct in question, and the sanction imposed upon you is reasonable.
- if you are dismissed for poor performance, whether or not that dismissal is fair will depend on whether or not your employer has explained the nature of the poor performance to you and what is required of you, given you warnings about your performance and given you sufficient opportunity to improve your performance before a decision to dismiss is taken.
- if you are dismissed on grounds of redundancy, employers often go wrong when they are selecting people for redundancy. Examples as to how the process can go awry:
The number one sin that many employers commit, is to decide to get rid of a particular employee, and then to retrospectively justify the decision by calling it ‘redundancy’. Having said that, it can sometimes be difficult for the employee to prove that is what occurred, in which case it will be necessary to look for other signs of an unfair redundancy procedure.
Often, in a team of two or more, the employer will put all positions at risk of redundancy but then create the same number of new positions. In this case, a careful analysis of the old and new job descriptions will be required. Some employers will only make superficial changes to the job title and some aspects of the role. In this case the employee may be able to argue that there are no substantive changes to his or her existing role, and that therefore the statutory definition of redundancy is not satisfied.
There are several approaches to constructing a pool of employees from whom redundancies will be selected. Sometimes the pool will be everyone in a particular department; sometimes it will be everyone with the same job title; sometimes it will be everyone performing a particular function. However, if only one person has been put at risk of redundancy, then this will usually raise concern that something is not right. There may be legitimate reasons to do so (for example if the manager of a team is being put at risk to flatten the management structure), but often this suggests prejudging the situation.
Alternatively the employer will say that they have already scored the members of the team but will only put the employees with the lowest scores ‘at risk’. Again this may suggest prejudgment of the outcome of a fair redundancy selection exercise, though they should consult on the proposed redundancy selection criteria before applying them.
As mentioned above, employers should consult with affected staff on the proposed redundancy selection criteria before applying them, but not all do. Employers often rely on vague and woolly selection criteria, such as ‘ability to adapt’ without any objective justification for their score. Some scores are at complete odds to the annual appraisals of the employees at risk.
Alternatively employers will rely on objective criteria such as sales figures, but will then choose a period which skews the results against the person they don’t want to keep. Sometimes, employers won’t compare like for like; for example comparing the sickness absence record of one person with three years’ service against another with only 6 months’ service (who inevitably will have had less sick leave)
Instead of using a selection criteria scorecard approach, some employers will interview at risk employees for the remaining positions. Employers should ensure that they ask the same questions of all candidates and keep a record of the answers. Again this is an ideal opportunity to score-down the person they want to get rid of. However if the matter gets to a Tribunal, they will have to disclose the interview score notes for each candidate and explain their results to a Judge.
Some employers take the view that consultation is only about looking at alternative vacancies within the organisation. This is not the case; consultation should normally include discussion of why the redundancies have arisen, any possible alternatives to redundancy, and redundancy selection criteria as well. Employers are not obliged to ring fence vacancies for only those at risk, but equally should not exclude employees from applying for relevant positions.
IF YOU FEEL YOU HAVE BEEN DISMISSED UNFAIRLY…
following disciplinary proceedings, then you may be able to bring a claim for unfair dismissal provided you have two years’ continuous service with your employer and you bring your claim within three months less a day of the end of your employment (subject to the requirements for registration with ACAS).
WHAT HAPPENS NEXT?
If the process ends badly for you and you want to bring an employment tribunal claim for unfair dismissal, we will take an appraisal of the facts and give you clear advice on the strengths and weaknesses of your case and on the potential prospects of success and on the estimated cost of bringing a claim as balanced against the compensation you might obtain.
If you decide to go ahead with an employment tribunal claim for unfair dismissal, we will fight your case as effectively and cost-efficiently as possible in order to achieve a successful outcome.
However, you may be covered by insurance, which means that an insurance company may meet some or all of your fees. This needs to be checked from the outset and brought to the attention of the practice.
DO YOU NEED MORE ADVICE OR SUPPORT?
Then speak to us today for a no-cost, no obligation discussion