Golden rules of Discipline and Dismissal

It is such a difficult environment for employers – with the current COVID-19 crisis following on from the uncertainty caused by Brexit.

Many employers will be preoccupied with surviving through to the end of 2020 which may well include a reduction in headcount and/or reducing hours and pay.

However, disciplinary issues are still arising, and still presenting the usual challenges for employers – as well as some new challenges such as dealing with hearings via Zoom/Teams.

Despite the current sense of unreality in the world around us we cannot afford to be distracted when dealing with disciplinary issues.  We must stay focused and not take any short cuts.

But, if we follow certain rules, we can improve our chances of avoiding claims and defeating a claim if one is brought.

You are in control

You know your employee.  You run the process

Right up to termination of employment – in fact up to any appeal – the process is in your hands.  If a claim is brought in the Tribunal, it is then out of your hands.

So, it is vital, that you do everything you can while you still have control to maximize your chances of success.  Be thorough.

Don’t ignore problems

If there is an issue – deal with it.

Start on the disciplinary process.  You will always get something out of it.

If you are nervous about dismissing – just give a warning.  You don’t have to dismiss.  But, you will be getting them onto the first rung of the disciplinary ladder.

Deal with any further issues in the same way.  Either they will see the writing on the wall and leave or will end up being dismissed – fairly.

Don’t pick the wrong fight

Sometimes, you are desperate to get rid of a troublesome employee.

It is tempting to say that a minor issue is gross misconduct and dismiss immediately.  If you do that and they bring a claim, you will lose

Be clever.  Don’t ignore the issue.  Get them on the disciplinary ladder.  But don’t overdo it.

Review everyone within 12/18 months

If an employee isn’t going to work out it will normally show within 12 months.

If in doubt, dismiss them.  There is just one thing to watch out for.

Claims of unfair dismissal in certain circumstances (such as dismissal for whistle blowing) and discrimination can be brought with less than 24 months service.  Those circumstances are rare.  But, to be on the safe side, check the list of reasons for dismissing which can give rise to an unfair dismissal claim without 24 months service and think about possible discrimination – contact us if you would like a copy of the list.

Documentation

Anything you create during a disciplinary process (in fact, during the employment relationship) might have to be disclosed if a claim is brought (or at any other time if the employee makes a request under the GDPR).

Don’t write anything down you wouldn’t be happy to see in a Bundle at the Tribunal!  Be careful with emails!

Follow your own procedures

If you don’t, any dismissal might be unfair.  If your procedures aren’t up to scratch – change them.

Appeals

The appeal is a second chance to get it right.  You can correct at appeal most mistakes made at the dismissal stage and make fair what would otherwise be unfair.

Without prejudice proposals/Pre termination negotiations

These are useful tools for agreeing a severance with an employee, where neither party really wants to go through a protracted disciplinary (or performance, grievance etc) process.

If you have any queries about how to dismiss fairly, please call us or send us an email.