Disciplinary procedure – ACAS Code – fair dismissal

2018 has generated more astonishingly unreasonable, greedy and generally toxic employees than I have encountered at any time in my previous 30 year HR career. In the year since the tribunal fees were repealed, numbers of applications to tribunal have exploded. Massively. Applications are up 165% on last year’s figures. The bad, mad, cynical and frivolous claims are back with a bang.

Employers have always had to be careful to get things right when they manage staff conduct or performance. The demands made of employers by tribunals have become ludicrous over the years, showing an utter lack of commercial understanding by judges who in most cases haven’t a clue how to run a business.

Even being very, very careful and very, very reasonable won’t necessarily stop a claim being made; but if you take a careful, reasonable and rigorous approach it will increase your chances of winning if you choose to fight. It also improves your chances of negotiating a sensible exit if you try to settle.

It is for an employer to demonstrate the reason for a dismissal. Dismissal will be unfair unless you can show that the reason was one of five potentially fair reasons (i.e., misconduct, capability, redundancy, contravention of a statutory restriction or for some other substantial reason); and that, in all the circumstances (including the size and administrative resources of the business),you acted procedurally correctly and reasonably in treating that reason as a sufficient reason for dismissal.

Whether your decision to dismiss is reasonable (or not) will be determined in accordance with equity and the substantial merits of the case. This is an objective test. The benchmark for procedural fairness in the case of discipline is the ACAS Code of Conduct on Disciplinary and Grievance Procedures (the Code) which sets out behaviours that you must adopt before taking the decision to dismiss an employee for misconduct or poor performance.

It is essential to carry out a proper investigation. The long-established case of British Home Stores Ltd v Burchell requires that in order to establish the reason for dismissal in a misconduct situation, you must show that you:

• believed the employee to be guilty of misconduct;
• had reasonable grounds upon which to sustain that belief;
• carried out as much investigation as was reasonable in all the circumstances at the stage at which you formed the belief.

As well as a thorough investigation, you must make sure the employee is fully aware of the case against him and then has the chance to respond to the allegations and put his own position/defence to you. If the employee raises issues which need further investigation the disciplinary hearing you should adjourn to allow any necessary additional investigations to be carried out.

It’s good practice to adjourn a discipline hearing before making a decision so that you can consider the case fully before coming to any final decision and you should always do so. During that adjournment, the decision maker, with the support of HR as appropriate, should consider all evidence and mitigating factors carefully, before determining what, if any, disciplinary action is appropriate.

Unfortunately, there’s no statutory 'tick box' list available, but consider the following factors when assessing the reasonableness of a decision to dismiss in a misconduct situation:
length of service

• the nature of the employment and experience
• general work record
• the status of the employee
• working environment
• consistency of treatment / the penalty imposed in similar cases in the past
• the nature of the misconduct involved, and whether it amounts to gross misconduct
• the extent to which any company rules have been breached
• whether the conduct is deliberate or repeated
• whether or not there are any live disciplinary warnings on file
• whether or not the employee was remorseful for their actions
• whether the employer's actions were reasonable, particularly when dealing with a situation where an employee has refused a reasonable instruction
• are any mitigating circumstances which might make it appropriate to adjust the severity of the penalty

Before determining whether a disciplinary sanction is appropriate and, if so, what form it should take, the ACAS Guide also suggests that you should consider whether:

• your rules indicate what the likely penalty will be as a result of the particular misconduct;
• the standards of the wider workforce are acceptable, and whether the employee is being unfairly singled out;
• any training, additional support or adjustments to the work is necessary.

The fairness of a dismissal (or otherwise) will depend on many factors. You need to carefully consider all of the circumstances before reaching a decision to dismiss.