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Disciplinary & Dismissal

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Quick links

- Disciplinary process
-
The ACAS code

- Dismissal


Disciplinary process

Facing a disciplinary can be daunting and it helps to know what to expect. Based on our experience of helping people through disciplinaries we know that you may want answers to:

  • Will I lose my job?                                         
  • Do I have to go to the meeting?
  • Can my employer suspend me?                    
  • Can I bring a family member with me?
  • What if I can’t go to the meeting?                  
  • Can I be disciplined if I am sick?
  • How much time does my employer have to give me to prepare for the meeting?

The disciplinary process can vary from employer to employer but should include these basic steps.

Investigation

An investigation is the first stage of the disciplinary process. Your employer should investigate to understand what has happened and decide if they need to discipline you. This investigation can include a meeting with you to get your side of the story. It may be that the problem can be dealt with by an informal discussion at this stage.

Invitation to a disciplinary

Following an investigation, you employer may consider it appropriate to take disciplinary action.  If that is the case you should get a letter explaining the issues and letting you know what evidence there is so you can prepare for the meeting and what the outcome of the disciplinary might be (warning or dismissal).

Your employer should give you reasonable time to prepare for the meeting.
You have the right to be accompanied by a Trade Union Representative or a work colleague.

Disciplinary meeting

You and your employer meet and talk about the situation. You should be given reasonable opportunity to ask questions, present evidence and give your side of the story.

Decision

Your employer will let you know their decision, either in person or by letter. They should take the time to consider any points you raised and may need to do further investigations before coming to a decision.

Appeal

If you disagree with the decision, you have the right to appeal it. Your employer should inform you of this right and how to make your appeal.

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The ACAS Code

The ACAS Code is a document written by ACAS (the Advisory, Conciliation and Arbitration Service) that sets out the steps that you and your employer should take for disciplinary and grievance processes. It is called the ‘The ACAS Code on Disciplinary and Grievance Procedures’, but it is know as ‘the ACAS Code’.

If you or your employer act unreasonably and don’t follow the basic requirements in the ACAS Code, it can affect the amount of money that your employer has to pay if you win an Employment Tribunal claim.

Supporting someone in a disciplinary process

A colleague might ask you to support them as their representative through the disciplinary process. Your employer shouldn’t treat you badly or differently because you have supported a colleague in this way, unless you have behaved maliciously or unreasonably.

Gross Misconduct

Gross misconduct is behaviour that is so bad that it means your employer can dismiss you without any notice pay. Normally, they will still need to go through a disciplinary process with you.

Suspension

An employer has the right to suspend you if they think you may damage their business. You will normally be kept on full pay if you are suspended from work.

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Unfair Dismissal

If you have been dismissed or think you are going to be dismissed it is important that you understand your options. You may be wondering:

  • How can I keep my job?
  • Can my employer dismiss me?
  • Can I sue my employer?
  • How much compensation can I get?
  • Can I make my employer give me a good reference?
  • What if I resign before I am dismissed?

There are five potentially fair reasons for dismissal:

  • Redundancy
  • Conduct (you have behaved inappropriately)
  • Capability (you can’t perform your job)
  • Illegality (it is illegal for you to do your job, for example: you don’t have a driving licence and your job is driving)
  • Some Other Substantial Reason (there is another good reason that means you can’t do your job, for example: you just cannot get on with a client or supplier).

Even if you are dismissed for one of these reasons, the dismissal should also follow the correct procedure and should be fair, looking at all the circumstances of the situation. 

If you began your employment on or after the 6 April 2012 you will need to have been employed for 2 years (including your statutory notice period) with your employer to be able to claim unfair dismissal, unless you have been dismissed for an automatically unfair reason. Automatically unfair reasons are things like whistle-blowing, pregnancy or maternity, discrimination, raising issues about health and safety at work, or being involved with trade union activities.

Constructive Unfair Dismissal

Constructive unfair dismissal is where your employer has treated you so badly that you have been forced to resign. For example; it might be that you are being bullied or harassed, or that your employer has changed how you do your job without your agreement. Like unfair dismissal, you will need to have been with the employer for 2 years (including your statutory notice period), unless there is an automatically unfair reason involved, for example; discrimination.

Constructive unfair dismissal cases are complicated because you have to show that a significant reason for your resignation was your employer’s bad behaviour. If you put up with the behaviour for too long it can look like you have accepted the employer’s behaviour. If you accept the behaviour or agree to it, it will damage any constructive unfair dismissal claim you may have. Whether or not the behaviour is bad enough to create a constructive unfair dismissal situation will depend on your specific situation and what is usual and expected with your employer. If you think you might have a constructive unfair dismissal claim, it is always best to get advice about exactly what is happening to you. You should get specific advice on your situation as soon as possible.

Wrongful Dismissal

Wrongful dismissal is a breach of contract claim. Wrongful dismissal claims usually arise when your employer dismisses you without paying you the correct notice pay. You might have other breach of contract claims if your employer hasn’t done what your employment contract says they should do. For example; not allowing you to go through a contractual performance or disciplinary process.

Capability Management or Performance Review

Capability management or performance review is when an employer tells you that you are failing to perform your job to the required standard and then puts a special process in place to manage how you work. There are two situations where this can happen:

  • You are unwell and this is affecting your performance.
  • Your performance is being affected for other reasons.

The process your employer follows should be different depending on the reasons you are not performing. If you are disabled your employer may need to consider making reasonable adjustments for you.

If your performance doesn’t improve, your employer can dismiss you. Whether or not the dismissal will be fair will depend on the situation and the process your employer followed. We can talk to you about your situation and help you work out what to do.

Compensation and Settlement Agreements

If your employer has done something wrong, your employer may offer you a settlement agreement to resolve the dispute or you may win compensation at an Employment Tribunal.

Settlement agreements used to be called compromise agreements.  We can help you understand what a settlement agreement might mean for you as well as outline the Tribunal's processes.

Bullying and Harassment

Problems at work can have a significant effect on your life. If you are facing these sorts of difficulties, you need to know how to protect yourself and your career. The legal protections that apply to you will depend on how you are being treated and why you are being treated this way. You could have discrimination claims, a constructive unfair dismissal claim or a claim under the Protection from Harassment Act 1997. We can explain your legal rights and help you assess the situation, including the best way to approach your employer.

Stress at Work and Personal Injury

Sometimes the situation at work can cause you significant stress. While stress itself is not a recognised illness it can lead to more serious mental and physical conditions. Your employer has a duty of care to protect you from injury, including mental injury. If you think your work might be damaging to your health, we can help you decide on the best way forwards and talk you through how to bring it up with your employer.

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