DISCIPLINARY PROCEDURES - 07.02.2013

Reducing the sanction: is their “consent” needed?

In a recent case, the employee successfully argued that the employer needed his express consent to substitute an earlier dismissal decision for a final written warning. Is this the law or did the employer do something wrong?

An almighty problem

In Piper v Maidstone and Tunbridge Wells NHS Trust 2012, Reverend Piper (P) had been employed by the Trust as its lead chaplain since 2008. On April 11 2011, an incident took place between him and his manager, Mrs Steele. This resulted in disciplinary proceedings being taken against P and on July 20 2011 he was dismissed for gross misconduct. At that point, he was also informed of his right of internal appeal under the Trust’s disciplinary procedure.

Lodging an appeal

P duly lodged a written appeal and the hearing took place on September 23 2011. Following this, the Trust decided to substitute the earlier dismissal sanction for disciplinary action short of dismissal. In addition to being given a final written warning, which was to remain on his file for 18 months, P was: (1) demoted from the role of lead chaplain to chaplain; (2) givenareduction in pay; and (3) transferred from his previous base of Maidstone Hospital to another Trust hospital located in Tunbridge Wells.

No consent to that

However, P refused to accept the new sanction on the basis that the Trust needed his prior and specific consent - and issued a claim for unfair dismissal. The Trust resisted his claim saying the new disciplinary sanction had removed the earlier dismissal, i.e. it was as though it had never existed and P had not been dismissed. The tribunal agreed with this argument and held that it had no jurisdiction to hear P’s claim, so he appealed to the Employment Appeal Tribunal.

Employee’s appeal upheld

It has just ruled in favour of P, meaning that he can now proceed with his unfair dismissal claim - we’ll keep you posted on that one as it progresses. But, for now, does this particular ruling mean that an employee must specifically consent to their employer reducing an earlier disciplinary sanction during an internal appeals process? In other words, are you stuck with the initial decision unless an employee agrees otherwise?

What’s in writing?

Thankfully, no it doesn’t. There was one reason the Trust ran into problems: its disciplinary procedure. It set out what “action short of dismissal” amounted to - namely, demotion and/or a transfer without pay protection - and also stated that “If an employee does not agree with this course of action, dismissal is the only alternative”.

Note. The nail in the coffin was that this disciplinary procedure had also been given full contractual force - so the Trust’s hands were tied.

Tip 1. The irony of this case is that had the Trust adopted the disciplinary procedure recommended by the ACAS Code of Practice, it probably would have won this case and not now be facing a further unfair dismissal claim in the tribunal.

Tip 2. Employees should never have the final say on a proposed disciplinary sanction. Neither should your procedure ever be given contractual force. Use ours and you won’t go wrong.

For a free sample disciplinary procedure, visit http://tipsandadvice-personnel.co.uk/download(PS 15. 04.04).

The employer in this case messed up because its disciplinary procedure stated that staff had “the right to reject lesser sanctions” and this document had been given contractual status. Never grant employees more rights than the ACAS Code of Practice suggests and always keep your own procedure non-contractual.

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