Case law: Employers must give employees right to make representations on factors influencing how they will be disciplined
Employees facing disciplinary proceedings must be told of all factors the employer is taking into account when deciding on the sanction to be imposed, and must be given opportunity to make representations about each factor, a recent ruling makes clear.
This update was published in Legal Alert - January 2016
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A manager had decided to issue a final written warning to an employee following an investigation into the employee’s misconduct in October 2012. However, the manager changed his mind and decided to dismiss the employee after learning the employee had been issued with a first written warning after October 2012, but for other misconduct which had taken place before that date.
The Employment Appeal Tribunal (EAT) found that the employee had been told that the sanction for his October 2012 misconduct would be decided upon after the disciplinary proceedings for the earlier misconduct. However, it also found that he had:
- not been made aware that the outcome of those proceedings could affect the sanction for the October 2012 misconduct, changing it from a final written warning to a dismissal, and
- not been given the opportunity to make representations about that
This amounted to a breach of natural justice, and the dismissal was unfair. The EAT also decided that the fact that the employer’s procedure gave the employee a right to appeal his dismissal was insufficient to remedy the employer’s breach.
- Employers should ensure employees facing disciplinary proceedings are told of all the factors being taken into account when deciding on the sanction to be imposed, and give them the opportunity to make representations about each factor
Case ref: John-Charles v NHS Business Services Authority UKEAT/0105/15/BA
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