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Employers: Make Sure Your Disciplinary Policy Is Fit For Purpose

If you are an employer I hope that by the end of this blog you will understand why your Disciplinary Policy is one of the most important HR documents you have and why it’s essential that it is drafted carefully. 

No employer likes to dismiss an employee. But sometimes it has to be done and, apart from it being an unpleasant thing to do, there’s always that lurking fear that you may “get it wrong” and end up on the end of an unpleasant and costly unfair dismissal claim. 

Employers should be reassured by the fact that misconduct can be a fair reason for dismissing an employee. Dismissal for misconduct will be fair if, at the time of the dismissal: 

  1. The employer believed the employee to be guilty of misconduct.
  2. The employer had reasonable grounds for believing that the employee was guilty of that misconduct.
  3. The employer had carried out as much investigation as was reasonable in the circumstances. 

It’s all about being “reasonable” – that’s a word used a lot in employment law practice. This means that an employer has to follow a fair procedure when investigating and dismissing the employee. If the employer doesn’t follow a fair procedure, the dismissal is likely to be unfair. 

Most cases are fact sensitive and this will determine how much investigation is needed but the one crucial aspect is that a fair procedure must be followed. ACAShas published a code of conduct (click here to see and/or download it: http://www.acas.org.uk/media/pdf/f/m/Acas-Code-of-Practice-1-on-disciplinary-and-grievance-procedures.pdf) and if an employer doesn’t comply with this code any compensation awarded to an employee can be increased by up to 25%. 

The safest way for an employer to protect itself is to have a written, easily understandable and easy to follow Disciplinary Policy which should be followed in every case of suspected misconduct. If this Policy is properly drafted and up to date then as long as it’s followed any dismissal should be fair. 

The first document an Employment Tribunal will look for in any unfair dismissal claim is a Disciplinary Policy. So, employers, is yours up to scratch? Is it written in language that both you and your employees can understand? Is it up to date? Does it ensure that your procedures satisfy theACASCode? Do your managers know it exists? If you are not sure, find it and read it. Get it checked and, if necessary redrafted. 

I act for both employers (http://www.clough-willis.co.uk/commercial-law-services/employment-law-and-hr/employment-tribunals/) and employees (http://www.clough-willis.co.uk/personal-law-services/employment-law/employment-tribunal-representation/) in employment tribunal claims so I know how important it is to get this Policy right. I can help employers draft quality HR policies on an ad hoc basis (http://www.clough-willis.co.uk/commercial-law-services/employment-law-and-hr/employment-contracts-and-service-agreements/) or as part of our Employers Advantage scheme (http://www.clough-willis.co.uk/commercial-law-services/employment-law-and-hr/employer-s-advantage/)