Webinar on disciplinary issues in the workplace – answers to the following questions (Part 3 – UK)

Here are some more questions – and our summarized answers – following our recent webinar on Disciplinary Issues in the Workplace.

In a large organization, is it necessary to have consistency in decision-making across departments? Decisions usually differ depending on who heard the hearing.

In short, yes. Ultimately, if a case ends up in an Employment Tribunal, it will expect an employer to have treated employees consistently – even if they are in different departments. A failure to do so without good reason may result in unfair dismissal.

If employees have committed similar violations, this will normally mean that similar disciplinary action should be taken against them. But this will not always be the case – there may be factors such as an employee’s previous disciplinary record or degree of remorse that justify an employer treating them differently.

IN MBNA Ltd v Jones [2015] The EAT considered whether the more lenient treatment of another employee could undermine the fairness of a dismissal which was otherwise clearly deserved. He concluded that this could be possible in three circumstances: (a) where the more lenient treatment of other employees created a false impression of what the employer was willing to tolerate from his staff; (b) where the discrepancy was evidence that the real reason for the dismissal was something other than that relied upon; and (c) where the circumstances of the other case were «genuinely comparable,» that is, more or less indistinguishable from the present case in any material respect. The last point (c) gives the employer considerable room for maneuver, since the relevant circumstances are rarely so similar. There may be differences in roles, apparent remorse, relevant rules and policies, profile of previous instances of the same conduct, experience or provocation/investigation, etc. For more details on this, see our blog here.

On a related note, how do you balance (i) the desire for a consistent disciplinary outcome for similar offenses; and (ii) as Legal/ER who does not want to unduly influence the outcome of the disciplinary manager? If we end up in Tribunal, we don’t want the disciplinary manager’s witness statement saying «I did what Legal/ER told me»!

As you rightly point out, it is very important if a case ends up in the Tribunal that any disciplinary decision is seen to be that of the manager concerned and that they are able to «own it» and explain their reasoning.

The decision of the EAT in Ramphal v. Department of Transportacts as an important reminder to Legal/ER of the dangers of interfering with the disciplinary process. According to our previous blog on that decision, it is perfectly permissible for Legal/ER to provide guidance to managers on the sanctions that typically apply to different levels of culpability and the factors that it is legitimate for them to consider when deciding which sanction to impose. compellingly This should help ensure greater consistency in terms of disciplinary outcome, but does not go beyond telling the manager whether the employee was guilty (or not) and what sanction to impose.

Again, according to the blog, where there is procedural/legal advice to be given by Legal/ER, do it in writing. While this will be revealed, it won’t hurt if the advice is «right», ie. not on the specific facts or merits or ideal outcomes of the case at hand. It may also reduce the scope for adverse conclusions reached by the EAT in Ramphal in terms of the legitimacy of the input made. All that said, advice from ER or Legal to the effect that certain conduct or behaviors are probably best not rejected will usually be wise and well received – the role of both functions is to pull managers back from the brink of you did something potentially. irreversible The far greater risk is the opposite circumstance, where the corporate or HR agenda to fire someone is allowed to override the concerns of the disciplinary manager who has actually heard the evidence.

When Legal/ER points out points or questions or lines of inquiry that the manager has not addressed, ask them to come back and raise these with the employee in another mini-meeting if necessary so that both perspectives be heard before a final decision is seen to be made

Ideally, define the relevant legal considerations for the manager in advance. IN Ramphal it is possible that the manager in question has changed his position on the appropriate sanction due to entirely appropriate advice from HR regarding the relevant burden of proof – ie. not «beyond reasonable doubt» as he seemed to believe at first, but the much lower threshold of «reasonable belief on the balance of probabilities». If he had understood from the beginning, perhaps this issue would have been avoided.

If you missed Part 1 or 2 of this series, they are available to read here: