You have probably seen at least one film or TV programme where vital evidence for the prosecution in a courtroom scene is deemed as inadmissible resulting in a clearly guilty defendant getting off scott-free. Maybe the police didn’t have the correct search warrant when crucial evidence was discovered or perhaps the defendant wasn’t read his or her rights.

Whatever the reason, the underlying problem is that there was a failure to follow procedure which means despite overwhelming evidence, the defendant gets off on a technicality.

The same principal goes for Employment Law and it’s an issue worth raising as there have been a number of Tribunal cases recently that have been ruled in favour of the employee because the employer did not follow due process or procedure. Some examples are:

• An employee who won her appeal against dismissal because her request to postpone a disciplinary hearing until her union representative was available was refused by her employer
• A teacher who was dismissed following inappropriate behaviour with a pupil won his Tribunal which judged the numerous disciplinary hearings he was required to attend to be disproportionate

In cases such as these, the employee has a claim for wrongful dismissal, which is effectively breach of contract, or unfair dismissal if there is more than two years service. It is the failure to follow procedure which amounts to this breach. Even when an employee blatantly deserves to be dismissed, failing to follow the correct procedure is like handing them a “get-out” clause.

Unsurprisingly, the disciplinary procedure is the subject we advise on the most and procedural inconsistency is what causes the most problems.

By law, your disciplinary and grievance policy must be readily available for scrutiny by any employee and will ordinarily reside within your staff handbook. Because your policy is available to all employees, there really is no excuse for failing to follow the procedure. The most common failings we come across are:

• Lack of impartiality at various stages of the process. Eg the disciplining officer also hears the appeal
• Missing levels of the procedure out altogether such as issuing a warning on the spot without any investigation
• Failing to make reasonable adjustments for employees to attend meetings
• Lack of a thorough investigation
• Failing to give adequate notice for disciplinary hearings

We know that following the procedure each time is onerous and time consuming. It detracts from your normal tasks and places added stress on people and their time. What you must consider though is the detrimental effects of not following procedure and the implications, including significant costs, this could have.

We’re on hand to help clients get through the disciplinary procedure safely and if needs be we will even come on site and conduct it on your behalf. For more information, call us on 01452 331331 or e-mail This email address is being protected from spambots. You need JavaScript enabled to view it.