Telling a client that they can’t pursue a particular course of disciplinary action is a difficult message to deliver. However, I have to consider the fairness and reasonableness of any potential outcome when advising on employee relations issues. Ultimately, if I protect the employee from an unfair decision being made, I protect my client from potential risk as a result.
These are 5 examples of situations where I have had to advise clients that I was unable to support a particular course of action:
(1) The client had not followed the procedure:
Industrial Tribunals will find any such dismissal automatically unfair, regardless of whether the decision was actually reasonable in the circumstances.
(2) The client had not dealt with issues consistently to date:
In this example, an employee had, without doubt, a terrible absence record. Unfortunately, the client had not communicated their Absence Policy to the workforce, nor had they any precedence of dealing with absence as a disciplinary offence. The Tribunal will consider how other employees had been treated in similar circumstances and would likely find in the employee’s favour.
(3) The client did not seek to consider all evidence:
Even where you are acting in accordance with your Absence Policy, it is not always appropriate to mechanically manage through the process. Some absences may relate to an underlying medical condition, so it is important to obtain medical evidence before taking any action. Failure to do so could expose the business to a further claim for disability discrimination.
(4) The decision was fundamentally unfair:
Despite an offence being listed as Gross Misconduct under the Company Disciplinary Procedure, summary dismissal isn’t always considered a reasonable response by the employer. The Tribunal will seek to establish if it destroys the relationship of trust and confidence between the employer and employee, making the working relationship impossible to continue. They will also wish to see that, even if the employee is guilty of gross misconduct, you have considered whether there is any appropriate sanction short of summary dismissal
(5) There is a better alternative to disciplinary proceedings:
If your desired objective from disciplinary proceedings is purely to correct behaviour, sometimes a better outcome can be achieved through a more informal route. It is important to consider such benefits before automatically moving to the Disciplinary Procedure.