12 most common mistakes employers make when disciplining an employee

1. Disciplining an employee:
12 most common breaches of
the ACAS code of practice

2. Mark Ferron LLB (Hons)
Managing Director Castle Associates
I have over 27 years experience in dealing with employment law
issues and a degree in law from The Nottingham Trent University.
Provide a range of HR services for the business in grievance,
disciplinary and redundancy situations
Independent investigator for any grievance or disciplinary
situations
Chair disciplinary, grievance and redundancy hearings and
meetings on behalf of companies
Provide the support and help the business needs, saving time and
money as well as alleviating the risk
Provide practical training courses for business owners, directors,
HR professional managers and supervisors, giving them the
practical skills for grievances and disciplinary situations
Represented and negotiated on behalf of my members for over 15
years, at local, regional and national level
Represented members at disciplinary and grievance hearing and
appeals
Ran and managed redundancy consultation processes ensuring
the correct procedure is undertaken

3. 1 Failing to follow the company’s disciplinary policy
 If you have a disciplinary policy and procedure which forms part of
the contract of employment, and you do not follow it during the
disciplinary process, the employee may have a claim for breach of
contract
 or wrongful dismissal in the County Court or High Court, even if they
do not have two years continuous service.
 In March 2014, the Supreme Court ruled that there is an implied
contractual right to a fair disciplinary process, and a serious breach of
this could enable an employee to obtain an injunction preventing the
employer from completing the process, requiring them to start the
process again.

4. 2 Failing to inform the employee of the possible
consequences of the disciplinary action
 You must inform the employee, from the outset, what the
possible outcome of any disciplinary action could be.
 This will enable them to understand the seriousness of the
proposed disciplinary action, and allow them a fair chance
to defend the allegation properly.
 It should not be a surprise to the individual if they are then
subsequently dismissed after a disciplinary hearing.

5. 3 Failing to set out the nature of the allegations
clearly
 You should set out the alleged misconduct or gross
misconduct clearly and in writing.
 There are occasions when new allegations come to
light during the investigatory stage; these can be
added to the process, as long as they have been
properly investigated and brought to the employee’s
attention as part of the process.
 New allegations should not be sprung on the employee
at the disciplinary hearing, nor just simply added to
any disciplinary sanction.

6. 4 Failure to provide the employee with all the
relevant evidence against them
 It is important that you provide the employee with all of the
evidence collected during the investigation, in particular, what
will be relied upon during the disciplinary hearing.
 This needs to be in advance of the meeting and could be in the
form of emails, policies, training records, witness statements and
so on.
 Ideally and best practice would be to send all of the information
when the employee is invited to the disciplinary hearing.
Alternatively, it should be sent far enough in advance of the
meeting to allow the employee a reasonable time to prepare their
defence.

7. 5 Not giving a lesser sanction where it was
appropriate
 There will be some cases where the alleged misconduct will be so
serious, and could amount to gross misconduct, where summary
dismissal for the first offence will be justified and reasonable in the
circumstances. However, in cases of minor misconduct, a series of
warnings before dismissal will be more appropriate.
 There are no national guidelines to determine what an employer
could class as gross misconduct. Each employer will have behaviours
which they will not tolerate at work; this will depend on the
employer, company policies, the nature of the work and type of
workplace.
 The action must be so serious that it irrevocably destroys any trust
and confidence on the employers’ part.

8. 6 Failing to allow the employee to be
accompanied at the disciplinary hearing
 It is a statutory right to allow employees to be accompanied at a
disciplinary hearing, and the ACAS code of practice reminds employers
of this requirement.
 The right to be accompanied arises when you invite your employee to
attend a disciplinary or grievance hearing, and they make a reasonable
request for a companion, of their choice, to attend the hearing.
 This can be a fellow worker, a trade union representative or an official
employed by a trade union.
 The maximum compensation for breach of the right to be accompanied
is 2 weeks pay (subject to the statutory weekly pay cap).

9. 7 Relying on evidence from one particular source
or witness with no other corroborating evidence
 Relying on evidence from one particular source or
witness with no other corroborating evidence
 There may be some limited circumstances and
occasions where one individual’s evidence is enough to
lead to a disciplinary sanction, but you should always
look for more evidence as part of your investigations to
either prove, or disprove the allegation.
 You must be alert to the problems of just relying on
one person’s evidence and always look for
corroborative evidence, where possible.

10. 8 Failure to have an adequate appeal stage
 The right to appeal is fundamental to ensuring natural justice and a fair
process.
 You should give your employee the opportunity to appeal against the
outcome of any disciplinary hearing after it has been communicated to
them.
 Appeals should be unbiased, normally with someone of a higher level;
and certainly someone different and who had not been involved in the
process.
 An appeal should not be a "foregone conclusion".

11. 9 Failure to keep adequate records
 To stand a better chance of successfully defending an
employment tribunal claim, you must keep a clear
record of each stage of the disciplinary process, from
the investigation through to the conclusion of the
appeal.
 It is too easy for ex-employees, or their representative,
to find inconsistencies in the evidence if you or your
managers have to rely on their memory.

12. 10 Delays in dealing with disciplinary issues
 In most disciplinary cases, they can be dealt with
in a matter of weeks and any unexplained delays in
the disciplinary process will always be frowned
upon by tribunals.
 There will, however, be more complex or difficult
cases where it will inevitably take longer.

13. 11 Failure to deal with grievances raised during
the disciplinary process
 There will be occasions during the disciplinary process
when your employee will raise a grievance.
 The ACAS code of practice allows you to decide whether to
deal with the grievance and disciplinary concurrently, or to
suspend the disciplinary process in order to hear the
grievance first.
 This will depend on the detail of the grievance and whether
it is related to the disciplinary process or not.
 The important point is not to ignore the grievance
altogether.

14. 12 Having the same person dealing with the
whole of the disciplinary process
 Whilst the employment tribunal will take into account the
size and the resources available to the employer, a common
failing found in tribunal claims is that the same individual
is in charge of the disciplinary process, from the
investigation through to the finish.
 Ideally, different people should carry out the investigation,
disciplinary hearing and appeal stage, although this will
not always be practicable, particularly for smaller
employers.
 This is where using an external consultant would be
invaluable, especially when there is no-one else to hear the
appeal.

15. For more information please do not hesitate to contact me:
mark@castleassociates.org.uk
www.linkedin.com/in/markferron
twitter.com/castleassociates
www.castleassociates.org.uk