3 things you need to know about disciplinary action for misconduct

If you have been subjected to disciplinary action, including dismissal for misconduct this may be unfair depending on the facts and the process followed by your employer.

(1)  What must your employer do before taking the decision to dismiss you?

Your employer must carry out a reasonable investigation of potential disciplinary matters without undue delay to establish the facts of the case. In some instances, this will require an investigatory meeting with you before proceeding to any disciplinary meeting.

In the case of British Home Stores v Burchell, a 3-stage test was formulated for determining whether an investigation was reasonable:

• your employer must establish the fact of its belief and did believe it
• your employer must have reasonable grounds for its belief
• at the stage your employer formed its belief it must have carried out as much investigation as was reasonable in all the circumstances of the case.

In deciding whether your employer’s investigation is adequate, your employer should consider the following:

• whether evidence has been taken from all potentially relevant witnesses, including those who could provide evidence on your behalf, and properly considered
• whether all other potentially relevant evidence, including documentary evidence, has been obtained and properly considered
• whether the investigating officer was sufficiently independent
• if appropriate, whether the evidence has been tested on the balance of probabilities.

You should be notified in writing and provided with:

• the specific allegation(s) of misconduct you need to answer
• sufficient information about the alleged misconduct to enable you to answer the case (it would normally be appropriate to provide copies of any written evidence, which may include any witness statements)
• an indication of the possible outcome of the disciplinary meeting, particularly where it is possible you could be dismissed
• the time and venue for the disciplinary meeting
• your right to be accompanied at the meeting.

The meeting should be held without unreasonable delay whilst allowing you reasonable time to prepare their case.

At the meeting, you should be allowed to:

• set out your case and answer the allegation(s)
• ask questions, present evidence and call relevant witnesses
• challenge any information provided by witnesses against you.

Where you or your employer intends to call witnesses at the meeting, advance notice should be given to the other.

(2)  What decision can your employer take after a disciplinary meeting?

After the disciplinary meeting, if your employer concludes you have committed misconduct it is common practice to provide you with:

• a written warning for a first act of misconduct
• a final written warning for a further act of misconduct within the currency of a written warning or a more serious act of misconduct
• dismissal for a further act of misconduct within the currency of a written warning or a more serious act of misconduct.

A decision to dismiss should only be taken by a manager who has the authority to do so. You should be informed of the reason(s) for the dismissal and the date your employment will end.

Some acts of misconduct are referred to as ‘gross misconduct’, which are so serious or have such serious consequences as to warrant dismissal without any previous warning or any period of notice.

Your employer’s disciplinary rules should ideally give examples of acts, which are considered to be gross misconduct (eg theft, fraud, physical violence).

If you are persistently unable or unwilling to attend a disciplinary meeting without good cause, your employer can make a decision on the evidence available in your absence.

(3)  What if you do not agree with your employer’s decision to dismiss you?

If you believe that the disciplinary action taken against you is wrong or unjust you should appeal against the decision. Appeals should be heard without unreasonable delay. Your employer should confirm in writing the time and venue for the appeal meeting and the right to be accompanied at the meeting.

You will normally be asked for the grounds of your appeal in writing before the appeal meeting.

The appeal should be dealt with impartially and wherever possible, by a manager who has not previously been involved in the case.

After the appeal meeting, your employer should inform you of its decision as soon as possible in writing.

Comment

There is no ‘one size fits all’ approach to disciplinary action for misconduct. Each case will be decided on its own facts. That said, the more transparent and balanced the disciplinary process, the more likely the disciplinary action will be fair.

Before taking the decision to bring a claim for unfair dismissal, you should take legal advice.