Webinar on disciplinary issues in the workplace – answers to the following questions (Part 4 – UK)

Here are some final questions – and our summary answers – from our recent webinar on Disciplinary Issues in the Workplace.

What’s the best way to manage contentious notes from meetings, especially when participants try to “rewrite” history after the meeting?

We share your pain – we’ve had numerous clients complain that employees have sought to “rewrite” what happened in a particular meeting with the benefit of hindsight. It is for this very reason that we usually recommend that employers do not seek to agree any meeting notes with the employee in question. The best approach is generally for the employer to arrange for someone to be present at the hearing to take notes of what is said. Acas non-statutory guidance recommends that this is someone who has not been involved in the case before. When typed, these notes must be sent to the employee after the hearing. If the employee wants to take their own notes, then so be it. But there is no obligation for the employer to agree to a set of notes. If the employee is dissatisfied with the notes that have been received from the employer, consider attaching each point of disagreement to the notes on a separate sheet. If the case ends up in an Employment Tribunal, it will be for the Tribunal panel to come to its own conclusion as to what happened and whether any discrepancies are material to the issues.

Can you consider previous warnings given in a disciplinary result letter? What about expired warnings?

An employer is entitled (and in fact should) take previous disciplinary warnings into account when determining the appropriate sanction for the alleged misconduct – assuming the warnings are still alive. The fact that a warning is issued for another disciplinary matter is irrelevant, although the employer’s disciplinary policy should make it clear that any further misconduct during the course of the direct warning may result in further disciplinary action, up to and including dismissal. If it refers to escalation only in the event of “similar” misconduct, then the employer may be deterred as a result. This should ideally be written to the employee in the letter issuing them with the warning.

With regard to expired warnings, an employer cannot use an expired warning to turn conduct that would not otherwise constitute serious misconduct into misconduct. However, an employer may take into account previous conduct, regardless of the fact that it was the subject of an expired warning, when deciding on the sanction for an offense dismissed. In exceptional circumstances, a dismissal which takes account of expired warnings may be appropriate. Your freedom to do so may be limited by your disciplinary policy. If this states in terms, as many do, that expired warnings will be removed from the file and will not be relied upon for any purpose, then it will be next best to impossible to show that it is reasonable to use them anyway. In the absence of this express provision, we turn to the fundamental question of whether the dismissal was reasonable in all the circumstances and to that end an employer cannot be required to treat an employee whose final warning has just expired, as if he has forgotten all the lessons they had. he is supposed to learn from her. However, the longer the warning has been out, the harder it is to rely on it safely.

What if an employee makes a complaint during the disciplinary process alleging discrimination/harassment and it is used as a defense to the charges but is not connected to the manager hearing the disciplinary case?

As we discussed in the webinar, if the complaint essentially constitutes a defense to the employer’s claim that the employee committed an act of misconduct, it would usually be reasonable to deal with that issue at the same time. If it is not related to the manager hearing the disciplinary matter, then there should be no problem with that particular manager dealing with the complaint at the same time. The Acas Code of Practice for Disciplinary and Grievance Procedures reflects this and states that where disciplinary and grievance cases are linked, it may be appropriate to deal with both matters simultaneously. If it is related to the intended disciplinary manager then it would be best practice to get someone else to hear it, but the employer can still combine grievances and disciplinary hearings as the two are inextricably linked and many of the facts in question will be the same

If you missed any of our previous posts in this series, they are available to read here: