Disciplinary policies? Who needs ‘em?
The House of Commons Commission didn’t appear to need their disciplinary policies recently, after an employment tribunal claim against them was successfully defended to the EAT.
The Commission dismissed a cleaner who was persistently late and on a final written warning for timekeeping - or rather the lack of it. They had taken her through a full disciplinary process with the required warnings and yet her timekeeping continued to be deplorable with very little evidence of improvement. Eventually she was sacked and then had the temerity to issue proceedings in the employment tribunal claiming that she had been unfairly dismissed.
Unusually, the Commission’s disciplinary policy was not part of the trial bundle. This was noted by the tribunal, but fortunately for the Commission it took into account the procedure which had been followed and the overall fairness of the dismissal. When the cleaner appealed to the EAT, while it acknowledged that ordinarily the disciplinary policy should have been disclosed, it rejected any suggestion that a disclosure order should have been sought and given.
While at RWK Goodman we would never advocate leaving a document as important as a disciplinary policy out of a trial bundle, it is interesting that, given the right factual scenario and procedure followed, it does not have to be fatal.
Why it’s important to have a disciplinary policy and process
So what can we learn from this? Most importantly: employers with tribunal claims should make sure your solicitors include the disciplinary policy in the trial bundle! But it also shows that the important thing is what you do, not what is on paper.
In this case the Commission followed a full and fair disciplinary process which involved a disciplinary hearing at which she was given a first written warning. It is presumed, although history does not relate, that meetings were documented, as indeed they should be.
When the employee persisted in turning up late to work the employer was entitled to, and did, convene a further disciplinary hearing at which no improvement in her timekeeping was found, as a result of which a final written warning was issued. She was therefore on a ticking clock if she did not improve – and she knew it.
All these steps were very probably in the disciplinary policy (which did actually exist) and are the proper steps to follow if an employer wants to show any dismissal is fair. So when the cleaner ignored the warnings and persisted in turning up late (maybe they should have given her a watch?!) the Commission convened a final disciplinary hearing and she was dismissed. She exercised her right to appeal but unsurprisingly that failed.
The considerations which the EAT took into account in deciding that the dismissal was fair were that she was on a live written warning for the same offence for which she was dismissed; she had been given sufficient time to improve but failed to do so; and poor timekeeping is generally considered to be misconduct which is a potentially fair reason for dismissal.
What are the necessary stages of disciplinary action?
Any employers considering dismissal in a given situation should firstly consider any previous warnings given for the misconduct, whether they remain live or have lapsed (in which case you are less likely to be able to rely on them as a step towards dismissal); and the nature of the misconduct relied upon.
The best defence to any tribunal proceedings is to ensure that everything is fully documented: evidence of the misconduct; invitation letters to investigation meetings and disciplinary hearings; transparency as to the allegations; minutes of the meetings; outcome letters; and evidence of reasoned decisions when they are given.
And finally, it is always advisable to have a disciplinary policy, make sure it is up to date, follow it – and make sure, if you end up in a tribunal, that it is in the bundle even though it didn’t matter in this case.