iHere are a few more of the questions – and our outline answers – following our recent webinar on Disciplinary Issues in the Workplace.
In a large organisation, is it necessary to have consistency in decision-making across departments? Usually decisions vary depending on who heard the hearing.
In short, yes. Ultimately if a matter ends up in an Employment Tribunal, it will expect an employer to have treated employees broadly consistently – even if they are in different departments. A failure to do so without good reason could potentially result in a finding of unfair dismissal.
If employees have committed similar offences, this normally means 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 which 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. It concluded that this might be possible in three circumstances: (a) where the more lenient treatment of other employees created a false picture of what the employer was willing to tolerate from its staff; (b) where the inconsistency was evidence that the real reason for dismissal was something other than that relied on; and (c) where the circumstances of the other case were “truly comparable”, meaning pretty much indistinguishable from the instant case in any material respect. That last point (c) gives the employer considerable room for manoeuvre, since the relevant circumstances are rarely so similar. There may be differences in roles, in evident contrition, in the relevant rules and policies, in the profile of earlier instances of the same conduct, in experience or provocation/investigation, etc. For more details on this, see our blog here.
On a related note, how do you balance (i) wanting a consistent disciplinary outcome for similar offences; and (ii) as Legal/ER not wanting to unduly influence the disciplinary manager’s outcome? If we end up in Tribunal, we don’t want the disciplinary manager’s witness statement saying “I did what Legal/ER told me to do”!
As you rightly flag, it is very important if a matter ends up in Tribunal that any disciplinary decision is seen to be that of the manager concerned and that they are able to “own this” and explain their reasoning.
The EAT’s decision in Ramphal v Department of Transportacts as an important reminder to Legal/ER about the risks of intervening in the disciplinary process. As per our previous blog on that decision, it is perfectly permissible for Legal/ER to provide guidance to managers on the sanctions usually applicable to different levels of culpability and the factors that it is legitimate for them to take into account when deciding which sanction to impose. This should help ensure greater consistency in terms of disciplinary outcome but does not cross the line into telling the manager whether the employee was guilty (or not) and which sanction to impose.
Again, as per the blog, where there is procedural/legal advice to be given by Legal/ER, do it in writing. While this will be disclosable, that will not hurt if the advice is “straight”, i.e. not about the specific facts or merits or ideal outcomes of the case in question. It may also reduce the scope for the adverse inferences reached by the EAT in Ramphal as to the legitimacy of the input made. All that said, advice from ER or Legal to the effect that certain conduct or behaviours are probably best not dismissing for will usually be wise and well-received – it is the role of both functions to pull managers back from the brink of doing something potentially irretrievable. By far the bigger risk is the opposite circumstance, where the corporate or HR agenda of getting shot of someone is allowed to over-ride the qualms of the disciplinary manager who actually heard the evidence.
Where Legal/ER spots points or questions or lines of enquiry which the manager did not, have them go back and raise these with the employee in another mini-meeting if necessary, so that both perspectives are heard before a final decision is seen to be made.
Ideally, set out the relevant legal considerations for the manager in advance. In Ramphal it is possible that the manager in question changed his position on the appropriate sanction because of entirely proper advice from HR as to the relevant burden of proof – i.e. not “beyond all reasonable doubt” as he appeared to believe at the outset, but the much lower threshold of “reasonable belief on the balance of probabilities”. If he had understood that at the beginning, perhaps this issue would have been avoided.
If you missed Part 1 or 2 of this series it’s available they are available to read here:
