Disciplinary Procedure

/Disciplinary Procedure
Disciplinary Procedure2017-09-03T13:24:11+00:00

Unfair Disciplinary Procedure

Many employees will likely (at some point in their career) find themselves being hauled into their employer’s Human Remains Department to have their knuckles wrapped. However, many employers fail to grasp that the disciplinary procedure is designed to help the employee improve, and should not be used as an opportunity to wrap the employee’s knuckles!

I myself was a victim of an unfair disciplinary procedure, and quickly turned the table on my employer. This was due to the very fact, that my employer chose to ‘act’ in a capricious and arbitrary manner during the disciplinary hearing. This I believe, was retaliation as a consequence of having lodged a grievance letter days earlier, due to workplace harassment. My employer’s counter allegations against me were without merit or substance. This was to my ‘detriment’.

Consequentially, I claimed constructive dismissal due to my employer’s failure to observe the mutual trust and confidence, whereby it ‘acted’ in a manner, which fundamentally destroyed the mutual trust and confidence {went to the root of the contract}. My former employer also failed to observe its own contractually binding policies and procedures, which I contended amounted to a breach of the employment contract. This case was subsequently settled by early intervention by ACAS, prior to lodging an Employment Tribunal claim. This was due to the fact, that a breakdown in relations had occurred.

“A Fair Disciplinary Procedure”

I have placed some precedent cases here to try and help you establish, which precedents might apply to your individual circumstances. Take a minute to look through them, and use them to your advantage where your employer has [acted] in an underhanded manner. I included some of these case precedents within my Grievance Appeal, and outlined my employer’s failures to observe the Rules of Natural Justice in addition to the aforementioned. Make no mistake, where an employer fails to get a disciplinary procedure right, and where the disciplinary procedure is contractually binding, it can be very expensive for the employer:

Dietmann v Brent London Borough Council:
It was held that even in the face of obvious misconduct, the employer still has to adhere to the [terms laid out in the contract] if the terms [specifically set out what must happen] before a dismissal can occur.

Morrow v Safeway Stores [2002] IRLR 9
The Employment Appeal Tribunal held that “Conduct which amounts to a breach of the implied term of trust and confidence will mean that there has been a fundamental or repudiatory breach going to the root of the contract’.

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Case Precedents – Employment Law  – Grievance And Disciplinary Procedure

Employer’s Breach of the Mutual Trust and Confidence

Courtaulds Northern Textiles Ltd v Andrew (1979) IRLR 84.
Two types of conduct relating to a “breach” of the “mutual trust and confidence”: (a) conduct likely to undermine the trust and confidence required if the employment relationship were to continue, and (b) conduct which itself amounted to a repudiatory breach entitling the employee to resign. Conduct amounting to a breach of the implied term would inevitably mean that there had been a fundamental or repudiatory breach.

Morrow v Safeway Stores [2002] IRLR 9
The EAT holds that any breach of the implied duty of trust and confidence will inevitably be repudiatory, entitling the employee to resign and claim constructive dismissal.

Horkulak v Cantor Fitzgerald International [2004] IRLR 942
The Court of Appeal held that threatening to dismiss an employee as to intimidate them, amounted a breach of mutual trust and confidence. The Courts have held that the public reprimand of an employee in a manner accepted by the court as “humiliating” would amount to a breach of the duty of mutual trust and confidence.

Western Excavating (ECC) Ltd v Sharp [1978] ICR 221)
It is an implied term in every contract of employment that the employer “will not, without reasonable and proper cause, conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the parties”

Malik v BCCI 1997 IRLR
An employer shall not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.

Employers Failure To Render A Fair and Impartial Grievance Procedure

Wigan Borough Council v Davies [1979] ICR 411
An implied term in contracts of employment is that the employer will provide reasonable support to ensure that the employee can carry out his/her duties without harassment or disruption by fellow workers; and where an employer has an obligation to take reasonable steps to achieve something and takes few or no steps, the onus of proving what steps would have been reasonable is on the employer.

Bracebridge Engineering Ltd v Darby [1990] IRLR 3 EAT
A failure to seriously consider a genuine grievance, or to operate an ineffective grievance procedure could be grounds for constructive dismissal.

Goolds v MccOnnell [1995] IRLR 516
The duty to reasonably and promptly afford an opportunity to employees to obtain redress of any grievance they may have.

Employers Failure To Render A Fair and Impartial Disciplinary Procedure

Strouthos v London Underground [2004] IRLR 636
It is required that charges against an employee should be precisely framed, and that the employee should only be found guilty of a charge, which has been [put] to him. The employee should know the allegation against him. Where the employer has not put it squarely to him, it is sufficient if the employee knows the [substance] of the charges to make the procedure fair. This is outlined in the precedent case below.

Spink -v- Express Foods Limited [1990] IRLR 320
“It is a fundamental part of a fair disciplinary procedure that an employee know the case against him. Fairness requires that someone accused should know the case to be met; should hear or be told the important parts of the evidence in support of that case; should have an opportunity to criticise or dispute that evidence and to adduce his own evidence and argue his case.”

British Home Stores -v- Burchell 1980 ICR 303
The Burchell test requires the employer to apply a three stage test, AND must have a [genuine belief ]of the employee’s misconduct, based on [reasonable grounds] after having carried out as much investigation as was reasonable in all the circumstances.
1. First of all, it must be [established] by the employer the fact of that belief; that the employer did believe it.
2. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief.
3. Thirdly, the employer, at the stage at which it formed that belief on those grounds {at any rate at the final stage at which it formed that belief on those grounds} had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.

“It is for the employer to satisfy the Tribunal that the dismissal was for a potentially fair reason within Section 98(2) of the Employment Rights Act 1996. If that hurdle is overcome, the Tribunal then needs to be satisfied whether the employer [acted reasonably] in [all the circumstances of the case] in dismissing the employee following the guidance in BHS v Burchell. The test is a well known three stage test. It is for the employer, at the time of dismissal, to be satisfied that a reasonable and thorough investigation had taken place and that there was a genuine belief of the misconduct based on that investigation.”

Sainsbury’s Supermarket v Hitt [2002] EWCA Civ 1588
“The [range of reasonable responses] test (as set out in Midland Bank plc v Madden 2000 ICR 1283, CA) applies not only for the purpose of determining whether it was procedurally or substantively fair or unfair for an employer to dismiss an employee but also for the purpose of determining whether investigations carried out by the employer were reasonable in all the circumstances. The Court of Appeal made it clear that the “range of reasonable responses” test applies to each of the three branches of the “British Home Stores v Burchell EAT 1980″ test and therefore applies to the issues of reasonable belief and adequate investigation.”

Celebi v Scolarest Compass Group UK & Ireland Ltd UKEAT/0032/10/LA (Theft)
Fairness requires that an employee should only face disciplinary action in respect of misconduct with which they have been charged:- accordingly, dismissal for an [act of misconduct] not mentioned in the disciplinary letter is [unfair].

Bentley Engineering Co Ltd -v- Mistry [1979] ICR 47
Employers disciplinary proceedings require that an employee should have a chance to state his own case [and] to know sufficiently what was being said against him, so that he could put forward his own case properly, and have a chance to state his own case in detail. The employee must know in one way or another sufficiently what is being said against him. If the employee does not know sufficiently what is being said against him, he cannot properly put forward his own case [Natural Justice]. This encompasses the employee either being allowed to see witness statements against him [or] be allowed to listen to what witnesses have to say about him.

Don’t Like it –  **** Off

Palmanor Ltd v Cedron, EAT 1978 IRLR 303
“Mr Cedron was employed as a barman at a night-club. During the course of his duties he had a row with his employers and a manager swore at him. Mr Cedron pulled the manager up over his language and was told that if he did not like the words being used he could go. Mr Cedron took this as an invitation to leave. An industrial tribunal took the view that Mr Cedron was entitled to treat himself as constructively dismissed, within the meaning of paragraph 5 (2) of Schedule 1 to the Trade Union and Labour Relations Act 1974, and that the [dismissal was unfair].

O’Neil v Wooldridge Ecotec Ltd UKEAT/0282/07
O’Neil swore at his line manager. The line manager then discussed the incident with other work colleagues before deciding to dismiss. O’Neil was summarily dismissed the next day. However, the letter confirming his dismissal [although it told him of his right to appeal] did not explain the reason why he had been dismissed. The EAT subsequently allowed O’Neil’s appeal. As O’Neil was not dismissed [immediately] – and the letter which was sent did not fulfill the statutory requirements, the standard statutory dismissal procedure should have been followed. As it had not been, the dismissal was [automatically unfair].

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