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Make sure the disciplining manager knows what they are doing.
This may seem obvious but as the recent case of Thompson v Imperial College Healthcare NHS Trust highlights, this doesn’t always happen and using an inexperienced member of staff to handle disciplinary proceedings can result in disciplinary action being unfair.
In that case, an employee who had previously received an informal warning and a written warning about their treatment of colleagues (although hadn’t received a final written warning), had three further complaints made against them and fresh disciplinary proceedings were commenced.
The employer’s disciplinary procedure cited bullying as gross misconduct and it included the usual staged sanctions for misconduct (a first written warning, final written warning and dismissal). The policy clearly stated that dismissal was reserved for gross misconduct and misconduct following cumulative warnings having previously been given.
The disciplinary chair was a medical consultant who had no experience of and who had received no training about how to conduct disciplinary proceedings. After a disciplinary hearing, he summarily dismissed the employee on the grounds of gross misconduct.
At the employment tribunal, the disciplinary chair admitted that the three alleged incidents alone did not amount to gross misconduct. However, he then went on to try and justify the decision to dismiss on the basis of, amongst other things, the previous warnings the employee had received.
On the basis of that evidence, the employment tribunal found that the dismissal was unfair, both substantively and procedurally, commenting that “as a minimum, fairness entails a decision by someone equipped with ability and experience commensurate with the demands of the case”. The decision was upheld by the Employment Appeal Tribunal with the EAT stressing that it was the disciplinary chair’s failure to apply the employer’s procedure properly which affected the fairness of the dismissal.
Whilst it not the case that having inexperienced staff chair a disciplinary hearing will itself render a disciplinary sanction unfair, there will be an expectation that the chair knows what the correct procedures are and that these are applied properly. Not training staff on each these points could well be fatal in a disciplinary exercise. The same can be said for grievance proceedings. It is therefore important to ensure that staff who handle disciplinary and grievance proceedings know what the correct procedures are and how they should be applied.
Training your management team on both of these points could well prove to be money well spent. Schofield Sweeney can offer a bespoke, practical “How to conduct disciplinary and grievance proceedings” training course for your management team. If you want to know more, contact Annie Gray on 0113 220 6341.