Disciplinary action and appeals

Letter of appeal against dismissal
This is a template of a general letter of appeal against dismissal. Amend it to include the circumstances of your dismissal.
Appeal against dismissal.docx
Microsoft Word Document 11.0 KB
ACAS Code of Practice on Discipline and Grievance
A copy of the ACAS Code of Practice for reference
Acas_Code_of_Practice_1_on_disciplinary_
Adobe Acrobat Document 1.6 MB

The disciplinary process

Employers have the right to take disciplinary action against their employees for matters such as misconduct, absence and performance.

 

The penalties that an employer can impose must be authorised by the contract of employment.  For example, if an employer imposes a penalty of reducing wages then they must have that power in the contract they have with the employee.

 

The disciplinary action should follow a fair process,  Many employers will have their own disciplinary policy which should set out the process they will follow. 

 

Additionally ACAS has a Code of Practice on disciplinary and grievance procedures which all employers should follow.  All employers policies should meet the ACAS Code and any employer which does not have it's own policy should follow the steps in the Code.  A copy of the Code is provided above.

 

In general a fair discipinary process will have the following steps:

  • the disciplinary issues are put in writing for the employee
  • the employee should have sufficient time to understand and prepare a defence to the allegations
  • a disciplinary hearing where the allegations are put and the employee is able to present their case
  • a right to be accompanied at the hearing (see above)
  • notification of the outcome
  • an appeal process

Disciplinary investigations

It is important for employers to establish the facts that give rise to disciplinary proceedings. In some cases this will be done by investigatory meetings before the disciplinary process is started or it may be done all as part of the same process.

 

If a meeting is held normally it would be expected that an employee would have some advance warning and time to prepare.

 

The extent of the investigation will depend on the type of case but employers are normally only required to carry out investigations that a reasonable employer would. They may not be required to gather every piece of available evidence or investigate every allegation against the employee if they are about similar misconduct:


Sainsbury's Supermarkets v Hitt (2002) EWCA Civ 1588


Shrestha v Genesis Housing Association (2015) EWCA Civ 94

Is there a right to a fair procedure?

Strangely, an employee may not always have the right to a fair process being followed in disciplinary proceedings. The ACAS Code of Practice in itself does not create a right to a fair disciplinary process,

 

If the disciplinary procedure is part of the contract of employment then there may be a breach of contract by the employer if it is not followed. However there may be little the employee can do at this point in the process other than write to the employer and ask for the breach to be corrected. It is possible to seek an injunction from a court to stop the breach of contract but this is can be expensive if lawyers are employed and carries the risk of having to pay costs if the case is lost - in most cases the benefit will not be worth this level of risk.

 

In other cases it will depend on the disciplinary action the employer takes which determines whether an employment right has been breached; if there is such a breach then the employee may be able to make a claim to an employment tribunal and only then will the fairness of the procedure be an issue.

 

A right does exist for an employee to be accompanied by a trade union representative or a work colleague at any disciplinary hearing.

 

More information on the right to be accompanied at a disciplinary hearing

Why is the disciplinary process important?

Although there are limited legal rights attached to an employers use of displinary procedures they are very important.  It is the first opportunity an employee has to explain their side of the story to their employer, persuade them what sanction to apply and perhaps to avoid being dismissed.

 

You should treat disciplinary proceedings as important and take the opportunity to present your case as persuasively as possible.

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