13 November 2015

Is your Disciplinary Procedure in line with the ACAS Code of Practice

Adeshina v St George's University Hospitals NHS Foundation Trust and others – 1^st May 2015

The claimant, a prison service pharmacist, faced allegations of unprofessional and inappropriate misconduct. Following a procedurally defective disciplinary process she was dismissed. One of the procedural failings was that the manager hearing the appeal made a decision partially relying upon matters which had not been put to the claimant. The claimant appealed against the dismissal.

According to the ACAS Code of practice on disciplinary and grievance procedures, appeals should be dealt with impartially by someone not previously involved in the case and the non-statutory ACAS guidance recommends that the person conducting the appeal should be more senior than the initial disciplinary manager.

Here the appeal process was also open to criticism in that:

· The manager hearing the appeal had been involved in part of the original case against the pharmacist.

· That manager was also a mentor to one of the victims of the alleged misconduct.

· The manager was also subordinate to the manager who had conducted the first disciplinary hearing.

The claimant's dismissal was confirmed and she brought a number of claims (including unfair dismissal). The key question was whether the flawed initial disciplinary process had been corrected by the employer on appeal.

The Employment Appeal Tribunal found that the dismissal was not unfair; the flaws at the first stage of the disciplinary process had been remedied. The mere fact of a manager having had prior dealings with an employee, without something extra which suggested bias, would not make the dismissal unfair.

Implications for employers

· Employers must always act fairly and reasonably in any disciplinary and grievance procedures.

· Failure to follow a fair procedure will usually make any subsequent dismissal unfair.

· The compensation awarded to an employee can be reduced in some circumstances to reflect the fact the dismissal would have happened anyway, if matters had been handled properly.

· The ACAS Code of practice on disciplinary and grievance procedures sets out the basic requirements of fairness and should always be followed. Supplemental ACAS guidance is also advisable.

· Failure to follow the Code itself can increase any award made against employers by up to 25%.

· Some procedural defects in an initial hearing may be remedied on appeal.

· If an employer wishes to remedy any procedural defects or omissions, it is sensible to conduct appeals as re-hearings where possible.

· Many small employers may have problems deciding who should hear an appeal. The only senior managers available, may be involved in the events giving rise to the disciplinary matter in the first place.

· It is sometimes unworkable, especially in smaller organisations, for those senior managers to avoid the disciplinary hearings, although appeals should be dealt with impartially by another manager where possible.

· Employers should plan who should hear a disciplinary matter and any subsequent appeal from the very outset.