How To Face Discipinary Action

Transcription

1 A CENTRAL LONDON LAW CENTRE PUBLICATION Facing Discipinary Action a n o i t c aaction A GUIDE FOR EMPLOYEES AND THEIR REPRESENTATIVES x RA LEWIS BY TAMA m

2 Acknowedgments With thanks to the Nuffied Foundation for funding this Guide. Guides on ine A pdf of this Guide is avaiabe on Centra London Law Centre s website at For hard copies, teephone the Law Centre on and speak to the administrator.

3 mx w contents Facing Discipinary Action A GUIDE FOR EMPLOYEES AND THEIR REPRESENTATIVES Contents Introduction and overview checkist 2 Come back if you get dismissed 3 ACAS Code and ACAS Guidance 4 The discipinary process 5 Appeas 7 The right to be accompanied 10 Evidence surveiance evidence anonymous witnesses 12 The discipinary hearing the right to cross-examine? 14 Postponing the hearing Faiing to attend Faiing to appea Resigning 19 Discipinary action Expired warnings Poor performance Probation 25 Gross misconduct 27 Factors affecting the eve of sanction Consistency Rigid rues 28 Reevant points for empoyees to make 29 Discrimination 34 Disabiity: reasonabe adjustments in the discipinary process 38 Tribunas compensation time-imits 43 Sampe etters 46 Books Guides Websites 50 1

4 mx w facing discipinary action Introduction This Guide is written for empoyees and their front-ine generaist advisers, to hep empoyees take appropriate steps when faced with discipinary action, whether on grounds of misconduct or poor performance. Party this is to maximise their chances of avoiding dismissa. But it is aso to improve their prospects of winning any empoyment tribuna case for unfair dismissa or discrimination shoud it come to that. The best route through the Guide is to start with the Contents page (p1) or the foowing checkist. Checkist The discipinary process 1. Empoyee receives etter inviting him/her to a discipinary hearing. 2. Check whether the etter ceary sets out the aegations and that it incudes copies of the evidence against the empoyee (witness statements; documents etc). See p5-6 for these requirements. If it does not, write asking for these (sampe etter, p46). 3. Find a companion or representative to attend with the empoyee (p10). 4. If the companion is not avaiabe on the reevant date, request a postponement (p10). 5. If the empoyee is unabe to attend on the specified date, write to the empoyer (see p17-20). 6. Prepare for the hearing: gather evidence and find any witnesses the empoyee needs (p12). 7. If the empoyee fees unabe to express his/her defence fuy at the hearing, put his/her points in writing (sampe etter, p47). 8. Before the hearing, write asking who wi be taking notes and for a copy of the notes afterwards (p15; sampe etter, p47). 9. Request any needed reasonabe adjustments if the empoyee is disabed (see p38). 10. The empoyee attends the hearing. Notes shoud be taken. 11. After the hearing, get a copy of the empoyer s minutes/notes to check their content is accurate. Write in with anything omitted. 12. If unhappy with the outcome, write etter of appea within required time-imit (appeas, p7; sampe etter, p48). 13. Do not miss empoyment tribuna time-imit (p45). Terminoogy Apart from in the dedicated discrimination sections, workers are referred to as empoyees throughout this Guide. This is because ony empoyees can caim unfair dismissa and are covered by the ACAS Code. Nevertheess, good practice points shoud cover a kinds of worker. The section on the right to be accompanied aso refers to workers generay. 2

5 mx w facing discipinary action Come back if you get dismissed Many empoyees seeking advice on impending discipinary proceedings are tod to come back if and when they are dismissed. Some advice agencies may be too busy to get invoved at such an eary stage or on short notice. Or they may fee that dismissa is inevitabe and there is nothing concrete that can be done at this point. Wrong! There are many reasons for advisers to guide empoyees through the discipinary process. And guidance usuay means hands-on guidance finding out the facts, noting the key points, drafting etters, drafting crib sheets with buet points for the empoyee to hand over at the hearing. Few empoyees are abe to transate genera verba advice into effective concrete action. Reasons to get invoved at the discipinary stage are: ÎGood psychoogy and a persuasive argument may be abe to prevent dismissa. ÎWhere dismissa is inevitabe, the way empoyees present their case is crucia to the chances of success. ÎPitfas for empoyees, which coud be avoided, incude: faiing to find out the aegations and evidence against them prior to the hearing so they are caught by surprise and cannot propery prepare their defence. faiing to put their fu defence to the empoyer at the discipinary and/or appea hearings. It is too ate by the time they get to the tribuna empoyers are ony expected to go on what they are tod at the time. faiing to understand - and therefore put forward - egay reevant points in their defence. faiing to get a good note of the discipinary hearing, so they are ater unabe to prove what was said to them or what they said by way of defence. in discrimination cases, faiing to spe out their concerns that they have been discriminated against. not attending the discipinary hearing or faiing to appea. 3

6 mx w facing discipinary action The ACAS code of practice on discipinary and grievance procedures ACAS (the Advisory, Conciiation and Arbitration Service) is an independent governmentfunded body. It has statutory authority to issue Codes of Practice containing practica guidance for improving industria reations. A revised ACAS Code on Discipinary and Grievance Procedures came into effect on 6 Apri It sets out recognised standards of good industria practice in deaing with discipinary situations invoving aegations of misconduct or poor performance. The Code shoud be foowed in a discipinary situations, not ony dismissas. The Code is ony 10 pages ong. It is avaiabe on the ACAS Website: It is not against the aw for an empoyer to fai to foow recommendations in the Code, but the tribuna wi take it into account when deciding whether an empoyee has been unfairy dismissed. Faiure by the empoyer or the empoyee to foow the Code may aso affect how much compensation the empoyee is awarded if s/he ater wins a tribuna case for unfair dismissa, discrimination, unawfu deductions or various other caims. If the caim concerns a matter to which the Code appies, and the empoyer unreasonaby faied to compy with the Code in reation to that matter, the empoyee s compensation may be increased by up to 25%. Equay, if the empoyee unreasonaby faied to compy with the Code, his/her compensation may be reduced by up to 25%. This rue is set out in section 207A of the Trade Union and Labour Reations (Consoidation) Act This ACAS compensation regime repaced the statutory dispute resoution procedures which were phased out from Apri Note that the Code appies to empoyees (as opposed to other workers). This is reevant to the compensation regime because, athough ony empoyees can caim unfair dismissa, other types of worker can make discrimination and other caims. References to the key provisions of the Code are set out throughout this guide. 4

7 mx w facing discipinary action Discipine and grievances at work: the ACAS guide ACAS has aso written a 70 page non-statutory Guide to good practice. It is avaiabe on the ACAS website. The Guide sets out extracts from the Code and expands it with more suggestions. Unike the Code, the ACAS Guide has no ega effect. It is therefore hard to predict whether it wi be referred to much in tribuna hearings. Nevertheess, ACAS has recognised status in the fied of industria reations, and its Guide sets out what is usuay regarded as good practice. It is worth knowing what the Guide says and in some circumstances, it may be usefu to quote sections in correspondence with the empoyer. Stages of a fair discipinary process The ACAS Code recommends these stages: The investigation stage The empoyer shoud carry out the necessary investigations to estabish the facts without unreasonabe deay. The empoyer may just coect the evidence or may hod an investigatory meeting with the empoyee before going to any discipinary hearing. Different peope shoud carry out the investigation and the discipinary hearing where that s practica. Suspension In cases where suspension is necessary, this shoud be kept as brief as possibe and shoud not be used as a discipinary sanction in itsef. Suspension must be on fu pay uness the contract of empoyment aows. The discipinary stage Foowing the investigation, the empoyer shoud give the empoyee written notification that there wi be a discipinary hearing. The notification shoud contain: Îdate, time and venue for the discipinary hearing Înotification of the right to be accompanied to the hearing 5

8 mx w facing discipinary action Îenough detais of the aeged misconduct or poor performance to enabe the empoyee to prepare for the hearing, usuay incuding copies of any witness statements and other written evidence. The discipinary hearing shoud be hed without unreasonabe deay. At the meeting, the empoyer shoud expain the compaint against the empoyee and go through the evidence which has been gathered. The empoyee must be aowed to: Îanswer the aegations Îpresent evidence and ca reevant witnesses Îask questions Îbring a feow worker or trade union representative as a companion (see p10). Both empoyer and empoyee shoud give advance notice of any witnesses they intend to bring to the hearing. After the meeting, the empoyer must notify the empoyee in writing of the outcome and any discipinary action. If the empoyee is dismissed, s/he shoud be given the reasons for dismissa and tod of the right to appea. The appea stage Empoyees shoud appea where they fee the discipinary action is wrong or unjust. Appeas shoud be heard without unreasonabe deay. Wherever possibe, appeas shoud be heard by a manager who has not previousy been invoved in the case. Empoyees aso have the right to be accompanied at the appea (see p10). Empoyees shoud be tod of the appea outcome as soon as possibe. 6

9 mx w facing discipinary action Appeas The ACAS Code on Discipinary and Grievance Procedures says empoyers shoud aow empoyees to appea against any forma discipinary decision made. If the empoyer refuses to aow an appea to take pace, it wi amost certainy make the dismissa unfair. It is aso ikey to ead to an increase in the empoyee s compensation if s/he ater wins an unfair dismissa or discrimination case in the empoyment tribuna. The appea procedure The Code simpy says appeas shoud be heard without unreasonabe deay. They shoud be deat with impartiay and wherever possibe, by a manager who has not previousy been invoved in the case. Empoyees have the right to be accompanied (see p10). Empoyees shoud be informed of the writing in outcome as soon as possibe. ACAS adds in its non-statutory Guide that ideay the manager who hears the appea shoud be more senior than the one who heard the origina hearing. But that is not aways possibe with sma organisations. If an organisation is reay tiny, maybe the owner or member of any Trustee board coud hear the appea. The empoyer s own discipinary procedure may set out procedure and time-scaes. There is no genera time-imit within which empoyees shoud notify their appea, but they shoud not wait too ong. Be carefu not to miss any time-imit set out in the empoyer s own discipinary procedure. ACAS says (in its nonstatutory Guide) that 5 working days woud usuay be appropriate, though sometimes onger is needed. If the empoyer unreasonaby insists on a shorter time-scae which the empoyee cannot adhere to, eg 2 working days, the empoyee shoud at east give written notification within the 2 days of his/her intention to appea and say that the grounds wi foow shorty. Grounds of appea An appea can be a fu rehearing of a the facts or simpy a review of the sanction. This depends on the empoyee s grounds of appea. An empoyee may appea on various grounds incuding: Îthe evidence did not support the manager s concusions at the origina discipinary Înew evidence has emerged Îthe penaty is inconsistent with how others have been treated Îthe sanction is too severe 7

10 mx w facing discipinary action Îthe discipinary and investigation was handed in a way which was proceduray unfair Îthere was unawfu discrimination in the handing of the discipinary or faiure to make reasonabe adjustments to the process under disabiity discrimination aw. Tips for drafting an appea etter: Îthink of who wi be hearing the appea. What arguments are ikey to appea to them? How wi they be thinking? Îconsider what impression the etter wi make. It shoud be poite, firm and measured, but not hostie and intemperate. Not ony wi that antagonise the person hearing the appea, but it wi ook bad in any future empoyment tribuna case. Îon the other hand, the etter shoud not sound weak and apoogetic. Some pressure may need to be appied to the decision-maker. But the pressure is appied by using persuasive arguments which the decision-maker knows woud ook powerfu to a tribuna. Îfocus on the strongest points. Don t ose sight of the wood for the trees. ÎAvoid accusations that the empoyee was set up without powerfu objective evidence (which is rare). For a sampe appea etter, see p48. Appea outcomes The decision of the appea may be to confirm the previous decision, to reduce the sanction or to overturn the decision atogether. Occasionay, the appea may uphod the decision but change the basis on which it was made. There is no guarantee that an appea decision wi not impose a worse sanction, eg dismissing an empoyee who is appeaing against a fina written warning but that woud be extremey unusua. It woud aso be ikey to be unfair, except in exceptiona circumstances. ACAS says in its non-statutory Guide that empoyees must not be punished for appeaing and higher penaties shoud not be imposed, because this may deter individuas from appeaing. Correcting earier unfairness A propery conducted appea which considers the whoe matter again can have the effect of correcting any unfairness at earier stages of the discipinary process. For exampe, a dismissa might be unfair because the empoyee was not tod of a the aegations against him/her prior to the discipinary hearing and, as a resut, did not put forward his/her defence. However, if a the aegations have been ceary set out in writing prior to the appea hearing, the empoyee does then get a chance at the appea to have a fair hearing. This can turn a dismissa from one which woud have been seen as unfair by an empoyment tribuna to one which is fair. 8

11 mx w facing discipinary action This can fee unjust because the empoyee has in effect ost the opportunity of one stage in the discipinary process. Aso, in some workpaces, senior managers tend to rubber-stamp appeas because they don t want to undermine their junior managers. But there is nothing that can be done about this situation. If a fair appea hearing is offered, the empoyee must participate. Otherwise the tribuna wi probaby say it is the empoyee s faut that the origina unfairness was not corrected. What if the empoyee doesn t want to appea? The ACAS Code says empoyees shoud appea if they fee the discipinary action against them was wrong or unjust. There is therefore a risk in not appeaing that, even if they win their unfair dismissa or discrimination case, the tribuna wi reduce the award of compensation. Nevertheess, in some circumstances, a tribuna may not reduce compensation, because it is understandabe why the empoyee did not appea. This is untested under the ACAS Code, but it may be understandabe if the empoyee was unacceptaby harassed during the discipinary and the empoyee has reasonabe fears that if s/he appeas or attends the appea, s/he wi be further harassed In such situations, it may be a good idea for empoyees to put in a fuy set out written appea, even if they do not actuay attend any appea meeting. On the other hand, if an empoyee has been so bady treated that s/he does not want to go back to work for that empoyer, it may be understandabe if s/he does not appea at a. Utimatey it is the empoyee s decision whether s/he wants to appea and whether s/he can face an appea hearing, bearing in mind the risks of not attending. For more comments on the risks of not appeaing or attending the appea hearing, see p17-p22. The empoyee doesn t want to go back There is a risk in appeaing if the empoyee definitey does not want to return. If the appea is successfu and the empoyee refuses to accept the offer of reinstatement, there are these potentia probems: Îit may be harder to win his/her unfair dismissa or discrimination case Îs/he may be awarded ess compensation if s/he does win because s/he has faied to mitigate ie reduce his/her financia oss by accepting the job back Îthe ega position may be that the dismissa no onger exists, so that s/he cannot caim unfair dismissa. The case aw on this is rather uncear, but the risk can t be discounted. Appeas against dismissa do not often succeed, particuary in the private sector, so it may be that these risks are minima. Tribuna time-imits Time-imits are set out on p45. It is essentia to put in the tribuna caim before the tribuna deadine even if the appea has not yet been decided. 9

12 mx w facing discipinary action Representatives at the discipinary hearing Check the discipinary procedure in the empoyee s contract. This may give empoyees an express right to be represented at the discipinary hearing by a coeague, trade union representative, or more rarey outside friend, reative or soicitor. Regardess of what the contract says, the aw gives a workers (not just empoyees) a right to be accompanied by a work coeague or trade union representative under section 10 of the Empoyment Reations Act 1999 (see beow). Section 10 does not give a right to be represented by anyone outside the organisation. The statutory right to be accompanied Section 10 of the Empoyment Reations Act 1999 Where a worker reasonaby requests to be accompanied at a discipinary hearing, the empoyer must aow the worker to choose a trade union representative or another of the empoyer s workers to accompany him/her. This right appies to a workers, not just to empoyees. This companion may address the hearing and confer with the worker during the hearing. The companion may put and sum up the worker s case and may respond on the worker s behaf to any view expressed at the hearing, but s/he may not answer questions on behaf of the worker. A discipinary hearing means a hearing which coud resut in a forma warning or the taking of some other action. This coud incude informa warnings which are put in writing and can be taken into account if further offences are committed. A purey investigatory, as opposed to discipinary, meeting is unikey to be covered by this right. However, trade union members are ikey to have separate rights to be represented by their trade union at investigatory meetings. The empoyer must aow a worker to take time off during working hours to accompany another of the empoyer s workers. If the chosen person cannot attend the proposed time for the hearing, the empoyer must postpone the hearing to any reasonabe time suggested by the worker within five working days of the origina date. A worker can compain to an empoyment tribuna if s/he is not aowed this statutory right to be accompanied. The tribuna can award compensation of up to two weeks pay (subject to the upper imit appicabe to statutory redundancy pay). 10

13 mx w facing discipinary action A worker must not be subjected to any detriment because s/he has tried to exercise this right or because s/he has accompanied another worker. Aso, it woud be automaticay unfair dismissa to dismiss an empoyee for this reason. What does the ACAS Code say? The ACAS Code of Guidance on Discipinary and Grievance Procedures refers to the statutory right to be accompanied at paras The statutory right is triggered when a worker asks to be accompanied. The ACAS Code goes further. At para 10, it states that empoyees shoud be advised of their right to be accompanied, when notified of a discipinary hearing. This means there may be a compensatory upift of up to 25% where, eg, the empoyee wins a case of unfair dismissa or discriminatory discipinary action, and the empoyer had not advised of the right or permitted the empoyee to be accompanied. Is a companion or representative necessary? Empoyees may find it hard to persuade a work coeague to come with them to the discipinary hearing and may fee there is itte point anyway in taking someone who does not have representative skis. The best use of an unskied companion is as a witness and a note-taker. Expain to them in advance what are the most important points and ask them to make sure they note down what the empoyee or the empoyer says on those points (see p15). The exceptiona right to ega representation There is not normay any right to representation by outside awyers uness such right is expicity given in the empoyee s contract, which woud be unusua. A few recent cases have successfuy caimed the right to ega representation using Artice 6 of the European Convention on Human Rights, which gives the right to a fair hearing. Usuay Artice 6 does not appy to interna discipinary hearings, but it can do so where a pubic sector empoyer s decision may ead to a professiona ban, eg because of aegations of sexua misconduct against a nurse or teacher. Usefu cases to read on this are Kukarni v Miton Keynes Hospita NHS Foundation Trust [2009] IRLR 829, CA; The Governors of X Schoo and others v R on the appication of G [2010] EWCA 1 (Admin) 11

14 mx w facing discipinary action Evidence Gathering evidence Once notified of the aegations, the empoyee needs to gather any reevant documentary evidence, eg the contract of empoyment, past appraisas, poicies, compimentary etters. S/he may need to ask the empoyer for copies of anything usefu which s/he does not have. The empoyee shoud aso consider whether s/he wants to bring any witnesses with him/her. There are three potentia probems with this: Îreuctant witnesses: Witnesses who are sti empoyed are usuay reuctant to get invoved as they fear for their own job. It is often a good tactic to ask them for a written statement first, and ony after they have given the statement, to ask whether they agree to come with. The statement shoud be in their own writing, signed and dated. It s important not to put excessive pressure on someone to hep once they have refused. They coud compain to the empoyer, and the empoyee coud be accused of harassment. Îirreevant witnesses: Witnesses are ony usefu if they have something reevant to say. Think carefuy about what evidence a witness woud be abe to give. Remember that witnesses can accidentay say unhepfu things. The empoyer may ask them other questions at the discipinary and they may put their foot in it. Don t ask a witness to hep if they know some things which wi be positivey unhepfu. Îthe empoyee is suspended and has been tod s/he may not contact anyone. In most cases it wi be unjustifiabe for empoyers to prevent a suspended empoyee contacting work coeagues as possibe witnesses. Uness the empoyee has been suspended because of some aegation connected with how s/he treats the reevant work coeagues, it is hard to see how communication can egitimatey be prohibited. The empoyee wi need to decide whether to go ahead and contact the possibe witnesses anyway or, preferaby, first to write to the empoyer asking the reason for the prohibition and stating that it is interfering with his/her abiity to put forward his/her case. Evidence against the empoyee The ACAS Code says that, when notifying the empoyee of the discipinary hearing, the empoyer shoud provide copies of any witness statements and other written evidence. If these are not suppied with the etter, the empoyee shoud ask for them to be suppied in good time to prepare for the hearing (see sampe etter, p46). 12

15 mx w facing discipinary action Surveiance evidence What happens if the empoyer has gathered evidence against the empoyee by secret tape-recordings or eectronic monitoring? This may be a breach of the Data Protection Act 1998 (the first data principe) and aso a breach of the empoyee s right to privacy under Artice 8 of the European Convention on Human Rights. However, this does not necessariy mean a dismissa based on such evidence wi be unfair. That wi mainy depend on whether the surveiance was proportionate, ie comparing the nature of the surveiance with the type of offence, whether evidence coud have been obtained in a ess intrusive way, and what the surveiance reveaed. In the case of McGowan v Scottish Water [2005] IRLR 167, the empoyer engaged private investigators to undertake covert surveiance of the empoyee s home because they (correcty) suspected him of fasifying his time-sheets. The EAT said the tribuna was entited to decide that the secret surveiance did not breach Artice 8 in a way which woud make the dismissa unfair. This was because the surveiance was proportionate the investigators ony fimed Mr McGowan s comings and goings which went to the heart of the matter; the fiming was from over the road and therefore recorded what coud have been observed by any member of the pubic using the road; there was no other way to check up on him; the subsequent discipinary process was fair; they were investigating effectivey a crimina matter; and the empoyer s suspicions were proved. Athough normay empoyees shoud be warned that covert surveiance may occur, this was an exceptiona circumstance, as it woud have defeated the purpose of the surveiance to forewarn Mr McGowan. McGowan is an extreme case, but it shows circumstances whereby a tribuna may consider the use of secret recordings of an empoyee s home to be permissibe. An empoyer might not need such a high eve justification to use evidence obtained by covert surveiance at work, especiay if empoyees have been warned it may occur. The Data Protection Code (avaiabe on the Information Commissioner s website at dataprotection.co.uk/pdf/empoyment_code_of_practice.pdf gives guidance on monitoring at work. The Code is ony guidance, not the aw. Part 3 of the Code says that covert monitoring shoud ony reay be used if crimina activity or equivaent mapractice is suspected. Anonymous evidence Empoyers need to be very carefu about reying on evidence from witnesses who want to remain anonymous, whether they are externa witnesses or feow empoyees. If empoyers do rey on such evidence, ACAS recommends in its non-statutory Guide that they seek corroborative evidence. It is aso important that: Îa fu statement is taken and shown to the empoyee; Îthe hearing officer interviews the informant and takes carefu notes; Îthe empoyer considers whether the informant has any reason to fabricate information against the empoyee. 13

16 mx w facing discipinary action See Linfood Cash & Carry Ltd v Thomson and another [1989] IRLR 235, EAT for fu guideines If the empoyer proposes to rey on anonymous witness evidence, the empoyee shoud therefore write: Îobjecting in principe on grounds that it is against natura justice and does not enabe the empoyee fuy to defend him/hersef against the evidence. Îasking why the witness wishes to remain anonymous, so that the empoyee has the chance to make any comments on that. Îasking to see a fu written statement from the witness, verified by HR. Îasking the empoyer to consider whether the witness woud have any reason to fabricate the evidence. The discipinary hearing Empoyees shoud make every effort to attend the discipinary and appea hearings (see p17). Empoyees have the right to be accompanied to the discipinary hearing and the appea (see p10). ACAS says in its non-statutory Guide that the accompanying person may aso ask questions and shoud be abe to confer privatey with the empoyee. Procedure at the discipinary hearing There are no rues as to precisey how a discipinary hearing shoud be conducted, athough some arge empoyers may have a written procedure. The ACAS Code sets out these guideines: At the meeting the empoyer shoud expain the compaint against the empoyee and go through the evidence that has been gathered. The empoyee shoud be aowed to set out their case and answer any aegations that have been made. The empoyee shoud aso be given a reasonabe opportunity to ask questions, present evidence and ca reevant witnesses. They shoud aso be given an opportunity to raise points about any information provided by witnesses. Where an empoyer or empoyee intends to ca reevant witnesses they shoud give advance notice that they intend to do this. Sma empoyers tend to hod sma informa discipinary hearings, sometimes with ony the ine manager, empoyee and empoyee s representative present. There may or may not aso be a minute-taker or someone from personne. The empoyee wi be shown witness statements, but the empoyer may not bring the witnesses against the empoyee to the hearing. Larger pubic-sector empoyers may have a more forma court room stye procedure, with a singe decisionmaker or discipinary pane, and witnesses caed upon to give evidence and be cross-examined. 14

17 mx w facing discipinary action Empoyers shoud make any reasonabe adjustments needed because of an empoyee s disabiity (see p38) or arrange for an interpreter if the empoyee is not speaking in his/her first anguage. Bias The person designated to conduct the discipinary needs to be impartia. ACAS recommends that the person hearing the discipinary is someone different from whoever conducted the preiminary investigation, athough that is not aways possibe with a sma empoyer. Aso, the person who hears the appea shoud not have been invoved in the earier discipinary stages. If necessary with sma empoyers, the owner of the organisation or member of any management committee shoud hear the appea. Nevertheess, it wi not necessariy be unfair dismissa if there is not this strict separation of personne. What counts is the overa fairness of the process. Is there a right to cross-examine witnesses? The empoyer may choose to bring witnesses to the discipinary hearing or may just bring written statements instead. Some discipinary procedures give empoyees the right to cross-examine witnesses against them at discipinary hearings. Otherwise, it a depends on the facts whether an empoyer can act reasonaby without aowing the empoyee to cross-examine witnesses against him/her. It is aways important that empoyees shoud know the evidence against them but it may be enough if they have been shown witness statements. (See Santamera v Express Cargo Forwarding t/a IEC Ltd [2003] IRLR 273, EAT carifying Usterbus Ltd v Henderson [1989] IRLR 251, NICA.) Where the aegations are very serious and coud affect an empoyee s future career, s/he is more ikey to have the right to cross-examine witnesses by reason of Artice 6 of the European Convention on Human Rights. (See The Governors of X Schoo and others v R on the appication of G [2010] EWCA 1 (Admin).) Minutes / Notes of the hearing It is important that there is an accurate and fu record of the hearing. If the empoyer has a minute-taker, estabish in advance that the empoyee wi be given a copy of the minutes immediatey after the hearing so that their accuracy can be agreed whie memories are fresh. If the empoyee did not obtain agreement to this in advance, ask afterwards anyway. A tribuna woud expect such a request to be agreed to. If the empoyee is given written minutes to check, s/he must be carefu to check carefuy and ensure everything is noted before indicating s/he agrees it is an accurate note. There are often disputes in the empoyment tribuna about what was said at a discipinary hearing. The tribuna wi amost certainy assume the written note is more accurate that anyone s memory months ater particuary if it was signed by the empoyee at the time. During the hearing, the empoyee shoud ask his/her representative to take notes, at east of the key points, ie the empoyer s expanation of the aegations; any key evidence mentioned by the empoyer; any 15

18 mx w facing discipinary action concessions made by the empoyer or occasions when the empoyer is unabe to give an exampe or answer a question from the empoyee; any unacceptabe comment by the empoyer which indicates hostiity or bias or intimidation; the empoyee s key expanations; any mention by the empoyee of discrimination. Aternativey, the empoyee can ask in advance to be permitted to tape record the hearing, on the basis that the empoyer wi aso be given a copy. Some empoyers agree to this, though many refuse. Remember that a recorded meeting is a two-edged sword. The empoyee may not necessariy come across very we and the empoyer wi be on best behaviour. Recordings are often incomprehensibe with bad sound quaity and uncear communication (istening to words aone can be miseading without seeing the speakers). Aso, if the empoyee does produce a recording to be used at the tribuna hearing, s/he probaby wi be required to type it up and et the empoyer isten to the tape. This can be time-consuming and expensive. Secret recordings are not a good idea. Athough the tribuna wi probaby aow them to be used at any ater tribuna hearing, they do not make a good impression. Aso, if the empoyer finds out, the empoyee coud probaby be fairy dismissed for that reason. Overapping grievance and discipinary cases Discipinary and grievance processes are usuay separate matters. If the empoyee is upset about discipinary action taken against him/her, the appropriate route is to appea rather than to take out a grievance. But sometimes the empoyee fees the bringing of the discipinary action is itsef part of a wider probem whereby s/he has been treated unfairy, and that the wider issue needs to be considered before the narrow discipinary can be fairy hed. This is most ikey to occur in discrimination cases. The ACAS Code simpy says that where an empoyee raises a grievance during a discipinary process, that process may be temporariy suspended in order to dea with the grievance. Aternativey, where the grievance and discipinary cases are reated it may be appropriate to dea with both issues concurrenty. Athough the Code does not say this, in a discrimination situation it is even arguabe that the grievance shoud be heard first. Some written discipinary procedures expicity address this possibiity and say what shoud happen if the empoyee raises a grievance after discipinary action has been initiated. Many such procedures say that the discipinary wi be heard first, or even that the grievance wi not be heard at a. In some circumstances this wi be unfair, especiay in the ight of the guidance in the ACAS Code. The difficuty is that grievances do not naturay have a pace in the midde of a discipinary procedure. Otherwise it woud be too easy to disrupt the discipinary process. The forum for any compaints by the empoyee about whether the discipinary is justified shoud usuay be the discipinary process itsef. There ceary needs to be a wider issue to support a grievance eg, as aready stated, an aegation of severa discriminatory actions (not purey discrimination in the discipinary matter). ACAS says in its non-statutory Guide that when an empoyee raises a grievance during the discipinary meeting, it may sometimes be appropriate to stop the meeting and suspend the discipinary procedure, eg 16

19 mx w facing discipinary action where the grievance reates to a confict of interest that the manager hoding the discipinary meeting is aeged to have, where bias is aeged in the conduct of the discipinary meeting or where there is possibe discrimination. Getting upset Many find it hard not to get upset during a discipinary hearing, and if the empoyee becomes very distressed, s/he coud ask for a brief adjournment. However, it is important that empoyees don t ose their temper. It wi not ook good to any empoyment tribuna hearing the case ater and is more ikey to ead to a dismissa. Not attending the discipinary hearing Usuay a mistake For various reasons, empoyees may be tempted not to attend the discipinary hearing. This is amost aways a mistake. As expained beow, the hearing can go ahead in the empoyee s absence and a dismissa wi not necessariy be unfair. These are the dangers of not attending: ÎThe empoyee is more ikey to be dismissed The empoyer wi get annoyed and is probaby more ikey to discipine or dismiss the empoyee. ÎAn empoyee is ess ikey to win his/her unfair dismissa case The ACAS Code says that where an empoyee is persistenty unabe or unwiing to attend a discipinary meeting without good cause, the empoyer shoud make a decision on the evidence avaiabe. An empoyment tribuna wi not necessariy say it is unfair to dismiss an empoyee in his/her absence. The empoyee wi aso ose the opportunity to put forward his/her defence. The empoyee may put forward strong evidence in his/her defence to the empoyment tribuna, but if s/he did not put it to the empoyer at the time, it won t hep. The tribuna wi say: The empoyer gave you a chance to attend and say a this. It s not the empoyer s faut you didn t attend. The empoyer s decision was reasonabe on the evidence it had at the time. Of course it is a different matter if it is in some way the empoyer s faut that the empoyee did not put forward his/her whoe defence. ÎThe empoyee is ikey to get ess compensation even if s/he does win A tribuna can make a percentage reduction in compensation for contributory faut or because the empoyee has not foowed procedures recommended by the ACAS Code (see p44). 17

20 mx w facing discipinary action What factors might make it unfair to dismiss an empoyee in his/her absence? It is more ikey to be unfair if Îthe empoyee has a good reason for not attending Îthe empoyee informed the empoyer in advance that s/he won t be coming and why Îthe empoyee has indicated a wiingness to attend on another day, not too far into the future Îthe empoyer does not reschedue the meeting at east once and warn the empoyee that s/he wi be dismissed if s/he doesn t attend a second time Îthe empoyer does not fairy consider a the evidence, even though the empoyee isn t there. It is particuary risky for an empoyee not to attend if s/he Îhas a record of not attending such meetings Îhas a bad discipinary record, or Îthe offence which s/he is accused of concerns some form of non-attendance or ack of cooperation, eg unauthorised absence or ateness. What is contributory faut? Under section 123(6) of the Empoyment Rights Act 1996, a tribuna must reduce an empoyee s compensation for unfair dismissa if it decides the dismissa was to any extent caused or contributed to by any action of the empoyee. This coud incude not putting forward his/her whoe defence at the time, eg by faiing to attend the discipinary or appea hearing. What does the ACAS Code say? Faiure to foow a reevant part of the ACAS Code on Discipinary and Grievance Procedures can ead to a reduction in compensation of up to 25% (see p4). The Code says that empoyees (as we as empoyers) shoud Îmake every effort to attend the discipinary meeting Îdea with matters prompty and not unreasonaby deay meetings 18