Written by Anil Champaneri, HR Consultant
- During a disciplinary process, you have to make the decisions and not be improperly influenced by a third party (like HR)
In the case of Ramphal v Department for Transport, a compliance inspector was dismissed for misconduct related to his claims for expenses.
The manager carrying out the investigation and disciplinary proceedings sought advice from their HR department throughout the process.
The employment tribunal found that the dismissal was fair. The employee appealed that decision to the Employment Appeal Tribunal (EAT).
The EAT was concerned that the manager had been improperly influenced by the HR department. It observed changes in his approach (for example, his first draft report contained a number of favourable findings with regard to the employee but after communications with the HR department, he became more critical of the employee (as evidenced by further drafts of his report)). This gave rise to an inference of improper influence by HR.
The EAT concluded that HR had gone beyond discussing and advising on issues of procedure, law and the level of appropriate sanctions with a view to achieving consistency (which would be their proper limits) and instead got involved in issues of the employee’s credibility and level of culpability.
Point to note: The person overseeing disciplinary proceedings needs to make up their own mind and not be unduly influenced by a third party even if it is their own HR department.
- Making use of an appeal to correct failings in the disciplinary process
In Khan v Stripestar Ltd, the employee was dismissed following a disciplinary hearing that lasted approximately six minutes and the employee had not been given an opportunity to explain himself.
The employee appealed the decision and the chair of the appeal suspended the appeal hearing to investigate the points raised by the employee.
The appeal chair carried out a full and thorough investigation, including interviewing witnesses. However, the outcome of the appeal was to not overturn the original decision to dismiss.
The employee was unsuccessful in his claim for unfair dismissal at the employment tribunal. He appealed unsuccessfully to the EAT who decided that a defective first stage disciplinary procedure could be remedied by a subsequent internal appeal and, importantly, that there were no limits to the defects which can be set right.
Point to note: So even if mistakes have been made during the disciplinary process, there is scope for them to be rectified during the appeal stage.
- The right to be accompanied
Employees have a statutory right to be accompanied at any formal disciplinary that could result in the worker being issued with a formal warning, penalised in some other way or dismissed.
In Collins v ILC Manchester Ltd t/a International Learning College, the employee was two months into his probationary period when he was called into a meeting.
The employee sought an adjournment to the meeting so that he could find a companion to accompany him. The employer refused and, at the end of the meeting, dismissed him.
The employee raised a claim with the employment tribunal that his employer had refused to allow him to be accompanied to a disciplinary hearing.
The employment tribunal upheld the employee’s claim and awarded one week’s pay as compensation.
The tribunal disagreed with the employer’s argument that the meeting was not a disciplinary hearing (which would trigger the right to be accompanied) because it had already decided to terminate the employee’s employment before the meeting. The tribunal emphasised the fact that matters of a disciplinary nature regarding the employee’s performance, attitude and timekeeping had been raised with the employee before the meeting and it was possible that he could have put forward a reasonably compelling argument at the meeting which might have forced his manager to reconsider their decision or at least defer the decision to dismiss him.
The tribunal also commented that the fact that the employee was in a probationary period was not relevant to the statutory definition of a disciplinary hearing.
Point to note: Even if a meeting is not a disciplinary hearing but could result in an employee being dismissed, they should be allowed to bring a companion (work colleague or suitably qualified trade union official) if they ask to be accompanied.
Please note this article is for information only and does not constitute advice. To ensure you follow best practice (and, if applicable, do not compromise your insurance), you should contact the Alcumus HR Consultancy team before embarking on any of the views given above.