I have been reading lots of problems regarding disciplinary actions being taken against individuals by employers for various reasons. The ones that really caught my eye were from Mazzy and Shellzone2270 and the comments by Cal37, Shywazz and Ell-enn.

Is procedure really that important, does an employer really need to 'put in writing an invite to an employee about a disciplinary meeting and tell them what it concerns'?

How much time should be given from the 'invite' until the meeting, how long is needed to prepare?

Does it matter if the employer postpones the meeting without telling the employee and then reschedules without any notice?

Should the outcome of the meeting be kept confidential or can it be made public knowledge before an appeal has be made?

It would be very interesting to know if these procedures are that important, what could happen if they were not followed.

I have my reasons.

Procedure does matter - if an employer faces an ET, they will almost always lose if they have not followed their own procedures never mind adhering to employee rights. Employees facing disciplinary action have a right to be informed in advance of what the action is for - it's called acting reasonably - and I am more and more astounded every day by the amount of employers who are most definately not acting reasonably and thinking they can get away with it.

An employee should be informed in writing of a disciplinary meeting and given the right to be accompanied and also if a disciplinary meeting needs to be rescheduled. All disciplinary action, including the appeal should be kept confidential so as not to cause the employee embarrassment or distress.

Have a look at www. acas.org.uk - you will find all the information regarding procedures there.

Kind Regards

Ell-enn

Re: Does procedure matter?

Oh yes. Awards can be increased by 50%, for eg, if the grievance procedure wasn't followed.

Correct procedure in just submitting a claim to an ET is very strict-even a day late can time bar everything.

The employer must follow at least the Statutory Minimum Requirements contained in the Employment Act 2002 when taking Disciplinary Action. These are:-

Written notice of the allegation against the employee, the basis of the allegation and an invitation to attend a meeting to discuss the matter.

A meeting should be held at which the employee has the right to accompaniment and notification should be given afterwards of the outcome.

The employee should be informed of their right to appeal, and the right to accompaniment at any appeal hearing, then informed of the outcome.

Failure to abide by these minimum requirements will normally make any dismissal automatically unfair, and as stated a Tribunal will increase any award by between 10% and 50%. In addition, a tribunal will consider other factors of good employment practice in determining whether action is fair or unfair based on the following:-

(From the ACAS Handbook)

meeting

tribunal, the dismissal will be found to be automatically unfair.

Yes it does matter very much, as ELL-ann said if an employer fails to follow Procedure and it goes to an ET, they are on sticky ground.

Last month a case went to an ET, the employee was dismissed for reasons I will not go into. It was shown that the company failed to follow Procedure by calling the employer to tell him that he was suspended and when his disciplinary hearing was.

This was the very next day and this was also the employees rest day, the employee asked for an adjournment and was told if he did not come in, he would be sacked.

The company failed to put in writing about the meeting and the reasons, failed to allow him an adjournment and the ET upheld the employee’s case on the grounds that the company failed to follow Procedures.

Now to your questions:

How much time should be given from the 'invite' until the meeting, how long is needed to prepare?

There is no set time limit but it must give you reasonable notice of at least 24 hours. You can ask for the meeting to rearrange to prepare and or to arrange a witness.

Does it matter if the employer postpones the meeting without telling the employee and then reschedules without any notice?

Yes it does matter, again at least 24 hours notice.

Should the outcome of the meeting be kept confidential or can it be made public knowledge before an appeal has been made?

Most certainly, it should never be made public no matter what.

I'd vote for Sidewinder's post above to become a mini-sticky - it's good information that sadly seems to escape many, many employers.

Karen, it sounds like you have a story to tell...

The only thing I'd add is that when it comes to procedure it works both ways, ETs will dock awards if claimants don't follow procedures.

Davjoh

The only thing I'd add is that when it comes to procedure it works both ways, ETs will dock awards if claimants don't follow procedures.

 

Davjoh

Very true, just to clarify a point. Despite it being stated in the Employment Act 2002 on Dismissal and Disciplinary Procedures that failed to follow them automatically makes the dismissal unfair, it’s not necessarily the case.

If for arguments sake you hit a co worker in work and the company held a meeting etc, say they never put the reasons you are being disciplined in writing to you and you are subsequently dismissed.

Now an ET could well agree that the company never followed the DDP but in this case, following them would not of changed the outcome and they could find that you are 90% to blame or even 100 %.

In most cases, not following the DDP gives great grounds for appeal in the companies own DDP`s and in most cases win that appeal for you.

Interesting comments. I am assuming the above would all apply where the application of an employers own Sickness Absence policy results in dismissal as well as statutory disciplinary/dismissal procedures.

1.Does an e-mail count as a written invitation?

2.Does a verbal invite to a meeting suffice?

3.If complaint made that no evidence provided in advance of the meeting, can the employer respond that I was aware what the meeting was about and was fully aware of all the absences that were recorded. My argument being that although this was true, it was the fact that I was not prepared for the way in which the statistics would be presented/manipulated and I was therefore unable to respond accordingly without having time to prepare.

4.The employers policy states that 'a letter will be sent within 5 days of the meeting to advise of the outcome and any action to be taken'.

If the employer hands the employee a copy of notes made at the meeting and ask for the employee to sign them, does this constitute sending a letter?

5.If the employer e-mails a copy of notes made at the meeting, does this constitute a letter?

Sorry if I am butting in on Karen's thread, I should probably start one of my own. I too have been following other posts with interest and have many questions of my own. I hope someone can help.

Thanks.

Interesting comments. I am assuming the above would all apply where the application of an employers own Sickness Absence policy results in dismissal as well as statutory disciplinary/dismissal procedures.

 

1.Does an e-mail count as a written invitation?

Yes it would, provided it set was clear about the purpose of the meeting and the potential outcome, and it included the other information that it needed to.

 

2.Does a verbal invite to a meeting suffice?

For formal proceedings, no. Informal, such as return to work interviews, it would be acceptable to invite verbally.

 

3.If complaint made that no evidence provided in advance of the meeting, can the employer respond that I was aware what the meeting was about and was fully aware of all the absences that were recorded. My argument being that although this was true, it was the fact that I was not prepared for the way in which the statistics would be presented/manipulated and I was therefore unable to respond accordingly without having time to prepare.

The inivitation letter should set out the reasons for the meeting and provide copies of any evidence to be relied upon. Failure to do so amounts ot a breach of natural justice.

 

4.The employers policy states that 'a letter will be sent within 5 days of the meeting to advise of the outcome and any action to be taken'.

 

If the employer hands the employee a copy of notes made at the meeting and ask for the employee to sign them, does this constitute sending a letter?

Possibly, but it would have to reflect the full comments - from all parties - be wholly accurate, detail what the meeting was about, and its conclusions. It would have to document our appeal rights also. If it did, and provided you were given a copy to keep, I'd say this might be acceptable.

 

5.If the employer e-mails a copy of notes made at the meeting, does this constitute a letter?

See #4.

 

Sorry if I am butting in on Karen's thread, I should probably start one of my own. I too have been following other posts with interest and have many questions of my own. I hope someone can help.

 

Thanks.

HTH

1.Does an e-mail count as a written invitation?

Yes it would, provided it set was clear about the purpose of the meeting and the potential outcome, and it included the other information that it needed to.

Sorry to disagree but this has come up in an ET and was ruled NOT to be writing notice.

On point 4, i would say that no the notes do not count. The companies own policy states that 'a letter will be sent within 5 days of the meeting to advise of the outcome and any action to be taken' This forms a contract that must be kept too.

Sorry to disagree but this has come up in an ET and was ruled NOT to be writing notice.

 

Really? Was the case reported or do you have a citation - this is very useful information indeed.

Interesting comments. I am assuming the above would all apply where the application of an employers own Sickness Absence policy results in dismissal as well as statutory disciplinary/dismissal procedures.

 

Dismissal for any reason is subject to Statutory Minimum Procedures. Persistent or unexplained absence is an acceptable reason for dismissal, but this would normally be the end stage of an escalating procedure, with a target for improvement given at each stage (but there may be such serious breaches of contract on the part of the employee involved in the absence that the employer could reasonably deem it to be Gross Misconduct). Persistent absence would normally evolve into 'capability' rather than purely 'disciplinary', but the dismissal process still has to follow correct and reasonable procedures.

 

1.Does an e-mail count as a written invitation?

 

Only where the employee is asked whether this is acceptable. For example, to be told verbally that the employee will be invited to a hearing, the date and timing of which will be notified, the employee should be asked whether the notification is acceptable in an e mail. A verbal follow up to ensure that the employee has received the e mail and understands the contents would probably be appropriate however.

 

2.Does a verbal invite to a meeting suffice?

 

No. The employee should be made aware of the precise nature of the meeting, the circumstances of any complaint or grievance and the right to accompaniment. This cannot be reasonably taken on board by the employee in a verbal communication, and leaves the employer wide open to an allegation that this part of the Statutory Minimum Procedures was not conveyed to the employee.

 

3.If complaint made that no evidence provided in advance of the meeting, can the employer respond that I was aware what the meeting was about and was fully aware of all the absences that were recorded. My argument being that although this was true, it was the fact that I was not prepared for the way in which the statistics would be presented/manipulated and I was therefore unable to respond accordingly without having time to prepare.

 

Unless in exceptional circumstances, previous absences would have invoked an escalating Disciplinary Procedure, on each occasion involving written confirmation of the outcome and a warning as to what action could result from a further breach withing a given time period. A reasonable action on the part of the employer would be to explain that a meeting would be held to discuss further absences subsequent to previous Disciplinary Action taken. Any measure used to calculate absence against a benchmark (eg Bradford Factor scoring) should be in the same format as for any previous action taken, and should be the same measure used for all employees. How the statistics are applied is a matter for the employer, but they should be explained, and applied evenly. Any dispute over the measurement used or statistics presented should be mentioned either at the time and recorded, or certainly as a part of any appeal.

 

4.The employers policy states that 'a letter will be sent within 5 days of the meeting to advise of the outcome and any action to be taken'.

 

If the employer hands the employee a copy of notes made at the meeting and ask for the employee to sign them, does this constitute sending a letter?

 

No. The outcome of a Disciplinary Hearing should be communicated in writing to the employee, even where the action taken has been a 'verbal' warning. In any action, the employee has a right of appeal, and should therefore be in possession of written information on which to decide whether he or she has grounds to appeal. It may be that notes are not a true account of what was said, so there should be an opportunity to study them at leisure before deciding whether to accept or refute what is written.

 

5.If the employer e-mails a copy of notes made at the meeting, does this constitute a letter?

 

Almost certainly not, unless it is with the agreement of the employee that such a means is the most suitable means of communication - even there, commonsense and good practice should dictate that the same information as in the e mail is duplicated in a written and posted format. E mail as a matter of course is not considered good practice. It can be amended easiliy by either party leading to allegations of malpractice on either side, may be lost in 'spam filters' or otherwise go astray. Hand delivery or a signed for postal service is the most appropriate means of communication.

 

Much of the above is not covered specifically in the Employment Act, nor are some of the points relevant under the Statutory Minimum Procedures, but would be considered by a Tribunal as evidence of good practice or otherwise on the part of the employer. In the event that the employer has acted unreasonably this could affect any award.

Many thanks to davjoh, cal37 and Sidewinder for your replies.

I am now busy preparing my case for appeal against dismissal.

There may be more questions. Would anyone be willing to answer questions via PM if necessary? I obviously don't want to reveal too many details on the forum.

Thanks again for all your help.

Can only speak for myself, and of course if I can help then I will.

Sidewinder - many thanks for your offer.

Meanwhile I have a general question:

Dismissal for any reason is subject to Statutory Minimum Procedures. Persistent or unexplained absence is an acceptable reason for dismissal, but this would normally be the end stage of an escalating procedure, with a target for improvement given at each stage (but there may be such serious breaches of contract on the part of the employee involved in the absence that the employer could reasonably deem it to be Gross Misconduct). Persistent absence would normally evolve into 'capability' rather than purely 'disciplinary', but the dismissal process still has to follow correct and reasonable procedures.

I guess this is the bit that I have struggled with the most since I was dismissed. In trying to research whether procedures were carried out correctly:

a) it has been difficult to see at what point in the employers procedure I was at at any given time, because they didn't ever say, for example, this is a meeting in accordance with part 3 of the procedure

b) it is difficult to equate points in the employers procedure with points in the statutory procedures to see if they were followed correctly eg. is the employers Final Review considered to be stage 1, or stage 2 of statutory procedures?

How can I work out when simple absence monitoring evolves into a capability procedure if it all comes under the guise of a sickness Absence Policy?

I can confirm that the reason given for my dismissal was 'capability due to frequent and persistent short term absence'.

What defines frequent or persistent?

Finally, regarding your post on 29 November @ 22.55 with the extract from the ACAS handbook. Do all those Statutory Procedures apply if dismissal was on grounds of capability, as above, rather than disciplinary?

Thanks

Sidewinder - many thanks for your offer.

 

Meanwhile I have a general question:

 

 

Dismissal for any reason is subject to Statutory Minimum Procedures. Persistent or unexplained absence is an acceptable reason for dismissal, but this would normally be the end stage of an escalating procedure, with a target for improvement given at each stage (but there may be such serious breaches of contract on the part of the employee involved in the absence that the employer could reasonably deem it to be Gross Misconduct). Persistent absence would normally evolve into 'capability' rather than purely 'disciplinary', but the dismissal process still has to follow correct and reasonable procedures.

 

I guess this is the bit that I have struggled with the most since I was dismissed. In trying to research whether procedures were carried out correctly:

a) it has been difficult to see at what point in the employers procedure I was at at any given time, because they didn't ever say, for example, this is a meeting in accordance with part 3 of the procedure

 

What procedure? Your employers or the statutory procedure?

b) it is difficult to equate points in the employers procedure with points in the statutory procedures to see if they were followed correctly eg. is the employers Final Review considered to be stage 1, or stage 2 of statutory procedures?

 

The employers procedure cannot override the stat procedure. Therefore it is wise to determine at what stage the stat would have been.

 

How can I work out when simple absence monitoring evolves into a capability procedure if it all comes under the guise of a sickness Absence Policy?

 

Your employer has obviously worked that out for you. It is for the ET to agree/disagree with them.

 

I can confirm that the reason given for my dismissal was 'capability due to frequent and persistent short term absence'.

 

What defines frequent or persistent?

 

An ET will determine that. (Depending on what was your job, the normal hours, days etc etc)

 

Finally, regarding your post on 29 November @ 22.55 with the extract from the ACAS handbook. Do all those Statutory Procedures apply if dismissal was on grounds of capability, as above, rather than disciplinary?

 

Thanks

....

Expat - I am composing something and will reply tomorrow.

I will help wherever I can.

The ONLY procedures that the company have to follow by law are Statutory Disciplinary and Dismissal Procedures as laid down Employment Act 2002.

Section 98A of the Employment Rights Act 1996 states that a dismissal is automatically unfair if the SDDP applies but has not been complied with by the employer. Furthermore, in such a case, the tribunal must increase any compensation awarded by 10% and may ‘if it considers it just and equitable in all the circumstances to do so’ increase the award by up to 50%.

Also a procedural unfairness that does not fall within the SDDP may be totally excused and render the dismissal fair if it can be shown that, on balance, the employee would have been dismissed in any event.

Your company might have its own policy concerning sickness Absence Policy and without seeing this I can not even begin to help there.

The company Procedures can offer more scope than the SDDP`s but NOT less.