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Employment Law Update – Let the Punishment Fit the Crime by Kate Russell
After he has heard all the evidence at a disciplinary hearing, the disciplining officer must decide whether it is appropriate to award a disciplinary sanction.
It is important that any disciplinary action taken is proportionate to the misconduct which has occurred, so before deciding whether to impose a disciplinary sanction and what sanction to impose (e.g. first warning, final warning or dismissal); the disciplining officer should consider carefully the background to the case. Before deciding on any disciplinary penalty, consider:
- The seriousness of the offence, and whether the procedure gives guidance
- The impact of the employee’s actions
- The penalty imposed in similar cases in the past
- The individual’s disciplinary record and general service
- Any mitigating circumstances
- Whether the proposed penalty is reasonable in all the circumstances
- Any current warnings for related offences.
A common mistake is to award too harsh a sanction. This often happens where an employee has been a nuisance for some reason, but the company has not dealt with it effectively. The risk is that the employee can resign and complain of constructive unfair dismissal.
It’s far better to err on the side of caution if in doubt. For example, if you are faced with a situation where a misconduct issue comes down to one employee’s word over another’s, give the accused the benefit of the doubt, especially if he has a previous good record and long service. Here’s a case which illustrates the principle. Ms Roldan was a Filipino nurse. She had worked for the Trust for four year. A healthcare assistant, Ms Denton, made a complaint that Ms Roldan had mistreated a patient and she was suspended pending a disciplinary investigation. She was told only that a serious complaint had been made against her.
During the investigation, Ms Denton was interviewed and completed an incident report. Ms Roldan and her supervisor were also interviewed. Eventually the panel dismissed Ms Roldan for gross misconduct. The panel accepted Ms Denton’s evidence, saying that it found Ms Roldan’s evidence to be unreliable and inconsistent. Her appeal was unsuccessful. As a result of this she not only lost her job, but also her work permit and therefore her right to work in the UK. She was also the subject of a criminal investigation by the police.
She complained successfully to the employment tribunal. The court found the dismissal to be unfair. It said that, because of the serious consequences for Ms Roldan, the employer had to be particularly balanced in its investigation. It criticised the disciplinary panel’s preference for Ms Denton’s evidence, which was purely on the basis that it could not see any reason why she should lie. It also said that the panel should have ‘cast its net wider’ to find other witnesses to Ms Roldan’s alleged actions and that she should have been informed at an earlier stage of the exact nature of the allegations made against her.
The Court of Appeal agreed with the decision and added that where there are allegations of misconduct and there are two opposing accounts of an incident with little or no corroborative evidence either way, employers are not required to believe one employee and disbelieve the other. It is perfectly correct for the employer to say that, while not disbelieving the complainant, it has found the case against the accused to be “not proven”. The benefit of the doubt is therefore given to the accused.
Keeping up to date with employment law is hard work. Matters like this are included in Law on the Move, a programme of employment law updates, including interactive webinars.
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Russell HR Consulting provides expert knowledge in the practical application of employment law as well as providing employment law training and HR support services. For more information, visit our website at www.russellhrconsulting.co.uk or call a member of the team on 0845 644 8955.
Russell HR Consulting offers HR services to businesses nationwide, including Buckinghamshire (covering Aylesbury, High Wycombe, Milton Keynes, Bedford, Banbury, Northampton, Towcester and surrounding areas), Nottinghamshire (covering Chesterfield, Mansfield, Nottingham, Sheffield, Worksop and surrounding areas) and Hampshire (covering Aldershot, Basingstoke, Reading, Farnborough, Fareham, Portsmouth, Southampton and surrounding areas).
About the Author
Kate Russell started Russell HR Consulting in 1998 and now divides her time between advising businesses of all sizes on HR issues, and delivering a range of highly practical employment law awareness training to line managers, including a range of public workshops. Her unique combination of legal background, direct line management experience and HR skills, enables Kate to present the stringent requirements of the law balanced against the realities of working life. She is a senior presenter for several companies and a popular public speaker. Kate completed an MA in strategic human resource management in 2004.
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