The Employment Bill received Royal Assent on July 8 this year, but the provisions for mandatory disciplinary procedures will not be brought into effect until the latter half of 2003.

This timing, more relaxed than anticipated, is to enable full consultation on the content of these procedures and to allow ACAS to draw up a revised Code of Practice embracing the new requirements – a welcome recognition that sound and practical advice should be in place before new rights and obligations are introduced.

However, like most others our industry is experiencing a substantial increase in the number of unfair dismissal complaints.

Recent changes to the employment tribunal process mean that cases are tending to take longer, preparation is much more time-consuming and the consequent costs are greater. In addition, trade union officials acting as employees’ companions are increasingly involving themselves in internal disciplinary procedures.

Union shock

Many employers still believe that such an event only can only occur in companies that recognise trade unions – the shock in non-union companies when this error is pointed out can be considerable. These developments require many employers to review their procedures now in order to avoid some of the more costly effects of these changes.

The most frequent grounds for complaint to an employment tribunal relate to unfair dismissal and such cases often shine an embarassingly harsh light on companies’ disciplinary procedures and the manner in which they are applied.

Of course, we all seek to ensure that any disciplinary action taken is just. But employers can be blinded by the seriousness of the “offence”, whether it is performance or conduct.

Certainly the nature and seriousness of the offence is an important consideration, and it is right that the punishment should fit the crime. However, such a strong focus can lose sight of the importance of the disciplinary process itself to a just outcome.

When a manager dismisses an employee he has performed the tasks of the police, the Crown Prosecution Service, the judge and the jury, hopefully not sounding like the prosecution counsel!

It is an onerous task but one which will be rigorously reviewed by an employment tribunal should a complaint be made. In practice tribunals are more likely to find dismissals unfair because of a fault in the procedure than because the reason for dismissal is poor.

The whole point of the ACAS Code of Practice on Disciplinary and Grievance Procedures (contact details are at the end of the article) is to provide clear guidance on good practice. That is why a failure to observe the Code carries so much weight with a tribunal. Some of the most obvious natural justice elements identified in the Code are that an employee should:

• have the case against them carefully investigated before disciplinary action is taken

• be informed of the complaints against them, and where possible all relevant evidence, before any hearin. (The mandatory disciplinary procedure to be introduced next year will make putting the complaint in writing before any hearing obligatory.)

• have a full opportunity to state their case before a decision is reached

• have the right to be accompanied by a “companion”, either a colleague or a trade union official

• have an explanation for any penalty imposed

• have the right of appeal if they believe they have been unfairly treated in any way. The appeal procedure to be followed should be specified.

In investigating the application of these requirements a tribunal is always obliged to judge the actions of an employer in the light of the “size and administrative resources” of that employer – larger companies will be less-easily forgiven any procedural flaws. That consideration is a sensible component of natural justice and the new mandatory disciplinary procedures to be introduced next year will apply to all employers, including those currently exempt from the need to have a disciplinary procedure because they employer fewer than 20 employees.

So, size matters, and small companies may just not have sufficient managers to accord with best practice.

For example, it is widely accepted that, other than in the most exceptional cases, an appeal against disciplinary action should be heard by a manager who has not been directly involved in the case to date (even though he may be aware of the events and the decision).

It is less frequently recognised that best practice also suggests that the manager conducting a disciplinary hearing should be different from the one who conducted the investigation (thus separating the police and judicial functions). This applies particularly if the manager concerned has a personal complaint about an employee’s conduct.

Companion’s role

It is worth considering offering the facility of a companion (perhaps limited to a colleague only) to an employee who is being investigated in a matter which could amount to gross misconduct, rather than limiting the facility to disciplinary hearings only. It will normally be clear to both parties from the outset that the case is potentially one of gross misconduct, and therefore that dismissal may be the end result. Allowing a colleague to be present at the crucial investigation stage can do little harm.

It is inevitable that employment tribunals need to make judgements about the credibility of witnesses and their evidence. So the existence of notes made at the time of a dismissal will carry a lot more weight than the faltering (and perhaps selective) memories of the parties at the time of the tribunal hearing, which may be as much as 12 months after the event.

Even brief handwritten notes made immediately following a meeting can be very supportive but, increasingly, larger companies are expected to have good minutes of all hearings.

In my earlier reference to warnings, I noted the commonsense link we all try to make between the “punishment” and the “crime”. However, employers should be careful of their wording and make it clear to employees that the purpose of disciplinary action short of dismissal is not punishment, but a clear statement of the consequences of any repetition of the performance or conduct which is the subject of complaint.

Explicit content

The content of any warning should be equally explicit, and should state:

• a clear description of the behaviour or performance under criticism

• what is required of the employee to correct the problem

• the period of time for which the warning will last before it expires

• what the consequences of a failure to improve may be and how progress will be monitored

• the right to appeal against the disciplinary action if it is thought to be unfair.

All these requirements are necessary to make a warning effective and to satisfy natural justice, and both considerations will influence an employment tribunal.

I referred earlier to the gradual introduction of trade union officials into internal disciplinary procedures as identified in the revised ACAS Code of Practice introduced in September 2000.

The prospect has caused understandable alarm in some quarters though it should be said that in the majority of cases the contribution made by the official has been both constructive and non-adversarial. They are though invariably experienced in disciplinary matters and, almost by definition, more so than the managers, who may not have tackled a serious disciplinary problem for some years.

It is important to note that the role of the trade union official is as a “companion”, not a representative, and such companions are not allowed to answer on behalf of the employee.

It will not be long before new laws require employers to facilitate the election of employee representatives, even in non-union situations, so it is as well to be clear about the companion’s role.

The Code of Practice forms an Appendix in “Discipline and Grievances at Work”, the excellent ACAS guide to a wide range of aspects of these internal procedures. This Handbook is by far the best short reference on these difficult topics and provides a wealth of accessible information for managers to consult before starting the disciplinary process. Any manager who is able to cite the Handbook and/or the Code as his reference before taking action will place himself in a much stronger position.

Grounds for complaint

Failure to allow an employee the facility of a companion in a disciplinary hearing is of itself grounds for complaint to an employment tribunal. This is the case whatever the employee’s length of service. (It applies even to employees who are still in their probationary period). While the maximum remedy for this complaint for an employee with less than a year’s service is only two weeks’ pay, the time-consuming process of defending such a complaint cannot be forgotten.

This year is turning out to be a tough one in which to do business, and many managers are seeking to improve productivity and lower costs by highlighting the poorer performers and taking them to task. By the same token, employment is and feels increasingly insecure and the loss of one’s job can create severe and immediate financial difficulties. It is not surprising therefore that the procedure for addressing these difficulties is very important to both parties, and the fairness with which such problems are handled will be crucial to long-term success.

Remember, any disciplinary action short of dismissal is intended to change that employee’s performance/conduct for the better – failure in this process will not only incur all the costs of recruiting and training a replacement but risk the potential substantial costs of a tribunal complaint – no contest.