• Kiri Thompson

The Disciplinary and Dismissal Process - Mistakes to Avoid

The process surrounding dismissals and disciplinary issues is complex and depends on a number of different things. Get something wrong at any point during the process and it could end up having significant repercussions, particularly if the employee decides to take the matter to an Employment Tribunal. The matter becomes even more complex if issues such as automatic unfair dismissal are involved, as many employers are not familiar with the law surrounding these and end up making mistakes that will cost them in the long run.

In this blog post, we examine the case of Mr C Jewell v Stax Converting Ltd: 2406047/2019.

What happened?

Mr Jewell joined a packaging manufacturer, Stax Converting Limited, in April 2018 as a warehouse machine operative. He and his pregnant partner shared the care of their six-year-old son.

In October 2018, Mr Jewell’s partner was undergoing pregnancy-associated medical treatment and appointments. Mr Jewell had booked time off work to attend one of these appointments and his employer had authorised that.

However, due to the nature of his partner’s pregnancy, this appointment was brought forward by two days, because of an urgent medical matter.

This gave Mr Jewell a problem as he usually took his six-year-old son to school in the morning, but on this particular day, he also wanted to attend the appointment with his partner.

On Friday 6th October, the day he learned of the change of appointment, he asked if he could attend the emergency medical appointment on the following Monday. The line manager refused, using robust language, as Mr Jewell had not given the required week’s notice in line with company policy. This refusal was despite the line manger knowing the reason for the appointment and its importance to Mr Jewell.

Mr Jewell then told his line manager that he had tried unsuccessfully to book this as annual leave in the company’s leave system, and so his only choice would be to take the Monday off as a day’s unpaid emergency dependant leave.

When he came back into work the day afterwards, he was invited to a disciplinary hearing for unauthorised absence and insubordination. The outcome of the disciplinary hearing was that no further action was to be taken, and for all further medical appointments to be covered by annual leave instead.

In the months that followed, Mr Jewell was spoken to by his line manager on several occasions about smoking and using his mobile at work. In March 2019, following the birth of his second child, Mr Jewell applied for paternity leave for the months of May and June. However, the day after he put in his request, he was issued with a letter of termination. This was on the grounds that he had allegedly not followed company rules in relation to taking holiday from work and had not given enough notice of his holiday, referring to the incident when one day’s unpaid leave was taken for the emergency medical appointment.

Mr Jewell appealed his dismissal, and his employer upheld their decision, so he proceeded to make a claim at the Employment Tribunal for unfair dismissal.

His claim was upheld; the judge said the principal reason for his dismissal was the fact he took one day’s unpaid emergency parental leave on Monday 8th October 2018 which made the decision to dismiss automatically unfair. Mr Jewell was awarded £8,000 in compensation for automatic unfair dismissal.

What should employers bear in mind?

This case has three main points to consider:

1. Employers should be reasonable and supportive when employees are asking for emergency time off for childcare, dependant leave and medical appointments for pregnancy-related reasons, even where the employee is the spouse/partner and not the pregnant woman.

2. The judge criticised the handling/timing of the employer’s action. The issues with the phone use and smoking should have been dealt with at the time, via a fair and transparent process in accordance with both the ACAS Code of Practice and the company’s own disciplinary policy. In this case, however, the issues were purposefully left to accumulate over a long period of time before the company chose to take action, by which time those incidences were used collectively as an opportunity to move straight to a final last resort outcome of dismissal. In line with the ACAS Code of Practice, a first or, in some cases, a final written warning - where the allegations are sufficiently serious to warrant it - may be deemed an appropriate sanction for first time offences of this nature. A decision to dismiss should always be a last resort option. However, whether any sanction is determined to be reasonable and fair will, as always, depend entirely on the facts of each individual case.

3. The employee should always be provided with the genuine reasons for dismissal – in this particular case, the judge said the employer had used the employee’s performance issues to mask the real reason for the dismissal - the fact that the company were unhappy that he had taken one day of unpaid leave, at short notice, some months prior for an urgent medical appointment with his partner which concerned their unborn baby.

The employer in this case made a catalogue of very serious errors which led to this costly employment tribunal outcome occurring. This is a situation which could have easily been avoided had the employer sought legal advice prior to taking any action against this employee.