19 March 2007

Just because disciplinary warnings do not constitute “action short of dismissal” and fall outside the scope of the statutory procedure, doesn’t mean you can do away with procedure entirely or dispense of warnings. It is in fact to the contrary!

An employment tribunal must consider guidance in the ACAS Code of Practice on Disciplinary and Grievance Procedures in relation to any claim to which it is relevant. The ACAS Code dictates that, with the exception of gross misconduct, an employee should not be dismissed for a first offence and employers should only resort to dismissal if formal warnings have failed to bring about the required improvement. Normally, the employee should be given at least two opportunities; a first written warning and then a final written warning. Each warning when issued should confirm the improvement which is expected, the consequences of failing to improve and how long the warning will last.

Warnings will be expected to last between six months and one year, depending on the severity of the offence. Employers have discretion to impose longer or shorter warnings, either to reflect the gravity of the offence or to show leniency, but any inconsistent treatment must be justified and all sanctions must be reasonable. Any unjustifiable or perverse disciplinary action could entitle the employee to resign and claim constructive unfair dismissal.

The time frame which employers give to a warning should be a considered decision as once it expires the warning must be disregarded for all disciplinary purposes. The EAT has recently confirmed this in Airbus UK Limited v Webb when it held that an employee had been unfairly dismissed for gross misconduct. In this case, a number of employees were all found guilty of gross misconduct but their employment history was taken into account when applying a sanction. Those with no prior disciplinary record were allowed to remain in employment. Webb had previously been issued with a final written warning, although it had expired three weeks before, and was dismissed. Webb argued, and the EAT agreed, that just as it is unfair to take an expired warning into account when determining what level of action to take, it is also unfair to use it when assessing mitigation and deciding on the appropriate sanction.

Another consideration is what happens to the record of the warning once it has expired. Practices vary amongst employers; some delete it from the employee’s file completely whereas others confirm that although it will be disregarded for disciplinary purposes it will remain on the file as a record of employment. The latter approach may be more cautious as this information can be needed in the future, for example, in any litigation or to fulfil a duty of care to referees. The Employment Practices Data Protection Code states that employees must be clear which approach is being used and, if it is to be destroyed, suitable arrangements must be in place to ensure that deletion actually takes place at the appropriate time.

Even so, you can still not just give a warning without notice. The ACAS Code recommends that before any action is taken the employee is advised in writing of the alleged offence and given an opportunity to present their case at a meeting. The employee should be advised of their right to be accompanied at this meeting by a trade union official or work colleague under the Employment Relations Act 1999. This right applies to any disciplinary or grievance meeting which could result in the administration or confirmation of a formal warning or some other action. Where a chosen representative is unable to attend on the day required, the employee can postpone the meeting for up to 5 days. 

The right to be accompanied applies to formal warnings only and care must be taken to avoid giving rise to this right when issuing an informal warning. The EAT has previously ruled that an informal warning that was confirmed in writing, had a timescale and which was to be taken into account if a similar offence occurred was in fact a formal warning. Ideally, under an informal warning the employee should be told of the nature of the problem, informed of the company’s expectations and advised that if the problem persists, or is repeated, then the disciplinary procedure will be invoked. Although given verbally, a general note what of was discussed should be kept on the employee’s personnel file.

When a formal warning is issued, employers are advised to confirm what action the employee can take if they are dissatisfied with the decision. In most cases it will be sufficient to offer the employee the right to appeal under provisions made in the disciplinary procedure. However, if the grounds of appeal could constitute statutory grievance i.e. alleged discrimination, employers should follow the statutory grievance procedure, which requires an initial meeting and a further right to appeal. In these cases, it would be inappropriate to use a disciplinary procedure if it has one stage of appeal only. 

Employees do not have a free standing right to bring a claim for failure to follow the statutory procedures but can bring this as a supplementary claim together with another breach of the employer, such as discrimination or unfair dismissal. If both claims are successful the employee will be entitled to between two and four weeks’ pay for failure to follow the statutory procedures and up to 50% increase in any compensation awarded for the other claim.

Employees may also seek compensation of up to two weeks’ pay if they have been denied the right be accompanied. In addition, compensation for unfair dismissal increased last month to a maximum of £60,600. So if you have reason to discipline an employee, consider yourself warned!