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Unfair Dismissal Mistakes made by employers (part 2)

Updated: Feb 17

During the dismissal process, it is easy to make errors of procedure. Some errors occur more commonly than others and our article gathers together the top ten, with guidance on how to avoid them.

When a case of unfair dismissal reaches the employment tribunal stage, the tribunal will usually take into account the ACAS Code of Practice on Disciplinary and Grievance Procedures, a new edition of which comes into force on 11th March 2015. The Code is issued under section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992.

A failure to follow the guidance laid down in the Code does not mean that an organisation or individual is liable for proceedings, but such a failure may well affect the amount of any award made by the tribunal.

If the tribunal feels that an employee has unreasonably failed to follow the guidance set out in the Code they can reduce any award they have made by up to 25 per cent. Conversely, an employer has unreasonably failed to follow the guidance set out in the Code they can increase any award they have made by up to 25 per cent.

It would seem obvious that it is in the interests of an employer to make sure that they have adhered to the guidelines in the Code but this is not always the case; whether by ignorance or oversight, employers sometimes make mistakes when handling unfair dismissal cases.

The following are the fifth and sixth of the ten most common mistakes that employers can make, with guidance on how to avoid them.

Not allowing the employee to be accompanied at a disciplinary hearing.

An employee’s right to be accompanied at a disciplinary or grievance hearing is laid out in Section 10 of the Employment Relations Act 1999. This right occurs when a worker who is invited to attend a disciplinary or grievance hearing makes a reasonable request for a companion – either a trade union representative or a fellow work colleague of their choice – to attend with them. If the employer does not comply with this, the worker can take their claim to a tribunal.

Until a couple of years ago, it was accepted that an employer could refuse the choice of companion, even if they were a union representative or colleague, if it was felt that they choice was ‘unreasonable’. Situations that could be classed as such included a companion whose presence might prejudice the hearing, or one who was based at a remote location. However, in 2013, two cases, Toal and another v GB Oils Ltd and Roberts v GB Oils Ltd have changed the position and ACAS have now amended the Code to take into account these rulings.

In the two cases, the Employment Appeal Tribunal (EAT) said that the right to choose a companion was an absolute right, provided that the companion is a trade union representative or a fellow work colleague.

This decision means that employers should not refuse an employee’s choice of companion at a disciplinary or grievance hearing, although they may have concerns about the companion in question; for example, where the companion has been involved in the events which led to the disciplinary/grievance hearing or would in some way potentially prejudice the fairness of the hearing.

There will be instances when the employer has technically breached the employee’s right, but has a good reason for doing so and the employee did not suffer any loss as a result of the breach.

Failure to keep clear records of the whole disciplinary process.

As with every aspect of a company’s business, meticulous records should be kept of every stage of the disciplinary process. If an employee chooses to take their claim to an employment tribunal, they or their representative will be scrutinising all the evidence very carefully and if there are any discrepancies, inconsistencies or gaps in either written statements or witness testimony, this will most likely be seized upon and could make the difference between a successful defence and an adverse judgement.

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