The Employment Appeal Tribunal (EAT) has dismissed a woman's appeal against a decision of the...
Why is it important to follow a correct disciplinary process?
Currently, an employee who has been employed for 2 years or more has the right to bring a claim for unfair dismissal against their former employer. This qualifying period is set to be reduced under the Government’s proposals set out within the Employment Rights Bill but for now, it remains to be 2 years.
Most disputes concerning how an employer has conducted a disciplinary process arise in unfair dismissal claims so, it is important that an employer is familiar with the process on how to dismiss fairly and comply with the Acas code on disciplinary and grievance procedures. If a former employee is successful in an unfair dismissal claim, the Tribunal could increase any award of compensation by up to 25% for failing to follow the code.
Whilst an employee with less than 2 years’ service does not have grounds to pursue a claim for unfair dismissal, it is always advisable to seek advice ahead of dismissing as the employee could have other protections such as those under the Equality Act and, in addition, some dismissals are deemed to be automatically unfair. In these circumstances, 2 years’ service is not required.
What happens if an employee goes off sick during a disciplinary process?
If it is a case of short-term absence not related to the proceedings, any initial meetings that have been arranged should simply be rescheduled until the employee is better.
If the employee continues to be off sick, the employer should consider referring the employee to occupational health to see if they are well enough to attend a meeting and, if not, when they are likely to be. In circumstances where the disciplinary allegations have subsequently caused the employee’s sickness, it may actually be in the employee’s best interest for the disciplinary process to be continued so that the matter can be concluded.
Eventually, the employer may have to find an alternative way of proceeding. This might mean conducting the hearing at an alternative location or remotely. Sometimes, it might be considered appropriate to deal with the grievance “on paper”. Any reasonable adjustments required should also be considered.
If the employee is still unable to attend a hearing, the employer might decide to hold a disciplinary hearing in the employee's absence and to make a decision on the evidence they have. If this is the case, a detailed paper trail should be kept so the employer can demonstrate it attempted to re-arrange the hearing. It should also be noted that the employee will still be able to appeal the outcome.
What if an employee raises a grievance during the disciplinary process?
How to deal with this situation will need to be assessed on a case-by-case basis. Sometimes, it might be appropriate to put a disciplinary process on hold. For example, if the grievance is about the disciplinary process being impartial.
It is not always practical to pause a disciplinary process until the grievance is concluded and it therefore might be appropriate to deal with the two matters concurrently or deal with the grievance once the disciplinary is concluded. However, it is generally not advisable to dismiss an employee whilst a grievance outcome is outstanding as this could result in an unfair dismissal claim in the Employment Tribunal. Again, this will depend on the circumstances and whether the grievance is related to the disciplinary or an entirely different set of circumstances.
If a grievance is raised following a disciplinary outcome being issued, it should be considered whether to deal with this via the disciplinary appeal process.
If you require advice on the content of this article please contact the Employment Team.