146 9: Dismissal and redundancy Part C Employment law
5.3.2 Disciplinary procedure
Employers are required to follow ACAS’s statutory Code of Practice on Disciplinary and Grievance
Procedures. This provides basic practical guidance to employers, employees and their representatives,
and sets out principles for handling disciplinary and grievance situations in the workplace.
A failure to follow the Code does not, in itself, make a person or organisation liable to proceedings.
However, employment tribunals take the Code into account when considering relevant cases, and they are
also able to adjust any awards made in relevant cases by up to 25% for unreasonable failure to comply
with any provision of the Code. Therefore if the tribunal feels that an employer has unreasonably failed to
follow the Code it can increase any award it has made by up to 25%. Conversely, it can reduce an award
by up to 25% if it feels an employee has unreasonably failed to follow the Code.
The code aims to ensure fairness in any disciplinary procedure, and this includes the following elements:Stage 1 The employer investigates the matter to establish the facts of the case
Stage 2 The employee is informed of the problem
Stage 3 A meeting is held between the parties to discuss the problem (the employee has the right
to be accompanied)Stage 4 A decision is made and appropriate action taken
Stage 5 The employee has an opportunity to appeal the decision
A similar process applies to a grievance process instituted by the employee. During either process both
parties should act promptly and without causing undue delay in the procedure and be consistent in their
actions.5.3.3 Warnings
Except in severe cases it is not reasonable for an employer to dismiss an employee without first
warning them that if they continue or repeat their behaviour they are likely to be dismissed.Newman v T H White Motors 1972
The facts: An employee used foul language to a trainee. The employer asked him not to do so. When he
persisted the employer dismissed him.
Decision: This was an unreasonable and therefore unfair dismissal. The employer must make it clear to the
employee that he risks dismissal if he persists.5.3.4 Concluding on reasonableness
In reaching its conclusion on the issue of reasonableness, the tribunal should not substitute what it
would have done if placed in the employer's situation. It is necessary to set the rights and interests of
the employee against the interests of the employer's business and then decide whether any reasonable
employer could have come to a different conclusion.Unreasonableness and breach of contract by the employer must be distinguished. Some unreasonable
conduct by the employer may be serious enough to repudiate the contract, and if the employee leaves they
can claim for constructive dismissal by the employer.
If the employer acts unreasonably but in a manner which does not amount to repudiation of the contract,
any resigning employee cannot claim constructive dismissal.