Disciplinary procedures: common mistakes made by employers

In unfair dismissal claims, employment tribunals (except in Northern Ireland) take the “Acas code of practice on disciplinary and grievance procedures” into account where relevant and may increase an award of compensation by up to 25% for an employer’s unreasonable failure to follow it.

Some dismissals can be fair if the employer follows their procedures correctly, but some dismissals are automatically unfair. However, many Employers make mistakes when handling disciplinaries and this can result in you having a claim for unfair dismissal if you have two years continuous service.

Here we look at the common mistakes Employers make during the disciplinary process.

Starting with Not following a disciplinary policy at all

If your Employer has a contractual disciplinary policy but does not follow this your employer will be in breach of contract.

If you are dismissed without your employer following a contractual disciplinary policy you can bring a claim for breach of contract in a County Court or High Court, or wrongful dismissal (i.e. dismissal in breach of contract – regarding the notice period and loss of salary over the period in which the disciplinary period should have been followed) and unfair dismissal in an Employment Tribunal. If you are dismissed before you have 2 years continuous service then you do not have a right to claim unfair dismissal but you as quickly as possible.

In a case in March 2014 the Supreme Court ruled that there is an implied contractual right to a fair disciplinary process, a serious breach of which could enable an employee to obtain an injunction preventing the employer from completing the process without starting again. In Chhabra v West London Mental Health NHS Trust this implied right was breached because the ‘conclusions’ of the person investigating the allegations against Chhabra had been amended extensively by an HR Advisor, resulting in an alleged misconduct being wrongly categorised as gross misconduct. The Court recognised that it is legitimate for the investigator to seek advice from HR about procedure or to ensure the report is clear and covers all necessary matters, but not the extensive amendments that were carried out in this case

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