Member Article

Follow the procedure or pay the penalty

Dental Nurse wins case after being given a written warning for eating an apple

A 28 year old Dental Nurse was given a final written warning by her bosses for misconduct, for eating an apple. The management also accused her of flouting the rules, such as, packing up her bags too early and using Facebook during working hours.

She walked out of her job after five years, claiming that her new bosses were ‘out to get her’ and the situation had affected her health.

Last week, representing herself at the Employment Tribunal she won her case for unfair constructive dismissal against the surgery.

Follow the procedures!

Some cases of misconduct seem indefensible but the employer must always follow the procedure recommended in the Acas Code, as even if the case against the employee seems proven, they can still be deemed to have been treated unfairly, if the correct procedures are not followed.

Disciplinary action should have three main stages:

• letter
• meeting
• appeal

In some cases a second meeting stage may be appropriate.

There must always be a full and fair investigation to determine the facts and to decide if further action is necessary.

All records must be kept meticulously; it is important to ‘lay-a-paper-trail’ as this will be vital should the case be taken to an Employment Tribunal. Minutes of meetings, emails, attendance notes, notes of telephone calls, copies of correspondence must all be kept and filed.

Disciplinary meetings

All appropriate managers should be trained and supported so that they are able to carry out disciplinary meetings with their team.

You should

• Ensure all the facts are investigated in advance {including consulting the individual’s personal file for relevant information} and plan how the meeting is to be approached
• Make sure that the employee knows from the letter inviting them to the meeting why they have been asked to attend and that they have the right to have a companion present. An individual is entitled to be accompanied by a work colleague or Trade Union official at formal disciplinary and grievance interviews. {It would be good practice for an employer to offer this at any purely investigatory meeting}. Employers do not usually have to allow other companions {for example; family members or lawyers} but may do so, if they wish.
• Make sure the individual has reasonable notice, ideally more than 72 hours.
• Provide appropriate statements from people involved in advance of the meeting, together with any key information to be relied upon.
• Make sure that another member of management is there to take detailed notes and help conduct the interview.
• Give the employee ample opportunity to put forward their side of the story and call any supporting witnesses, but they can only be in the room for the relevant part of the meeting - not the whole meeting.
• Make use of adjournments: always take a break to consider and obtain any extra information you need before reaching a decision. Adjournments can be useful if things become heated, or people get upset during the interview.
• Keep an open mind and never pre-judge the outcome of the interview before hearing the employee’s ‘side-of-the-story’.
• Deliver the decision {and give reasons, taking into account any mitigating circumstances}, confirm review periods and be sure the employee is given the details of how to appeal.
• Confirm the decision in writing.

The question of an employee’s ability to do the job may arise because they do not have adequate training, or are unable to work to a satisfactory standard for another reason. The procedure is the same but before the employer invokes the procedure the employer must try to identify the reason and give appropriate support.

Where an individual is unable to do their job because of ill-health they should be dealt with sympathetically and offered support. {Please read my previous article on managing sickness}. However, unacceptable levels of absence could still result in disciplinary proceedings.

Possible outcomes

The employer may decide to take no action, may dismiss the employee, or decide to give the employee a warning. The employer should outline exactly what warnings will be given, but normal practice is to have three warnings before dismissal. {With the exception of Gross Misconduct, where, if the allegations are well founded and after following due procedures, Summary Dismissal may be appropriate}.

Employers should specify a time limit after which warnings are disregarded. Acas suggests, six months for a first written warning and one year for a final written warning {action short of dismissal}. A warning may continue to be regarded for a longer period - provided the timescale is specified from the outset and it is reasonable.

Dismissal

There are officially five potentially fair reasons for dismissal:-

1. Capability or qualifications
2. Conduct
3. Illegality or contradiction of a statutory duty
4. Redundancy
5. Some other substantial reason {SOSR}.

Failing to follow internal disciplinary procedures and/or the Acas Code will almost certainly attract a successful claim at the Employment Tribunal.

If in doubt, seek professional advice. It could save you some embarrassment and, a lot of time and money!

This was posted in Bdaily's Members' News section by Andrew Dane .