If you are facing allegations of misconduct and your employer subsequently upholds the allegations, what sanction will your employer impose and what impact will any live or expired warnings have?
What Is A Workplace Disciplinary Sanction?
Most disciplinary procedures provide for some type of sanction if allegations of misconduct are proven against you. The most common sanctions are a first written warning, a final written warning, dismissal with notice or summary dismissal (dismissal without notice) in cases of gross misconduct. Some procedures also allow for action short of dismissal, such as demotion.
For more information about disciplinary procedures, please visit our website at https://lincslaw.co.uk/services/employees/workplace-problems/defending-disciplinary-allegations/
What Factors Should An Employer Take Into Account When Considering A Disciplinary Sanction?
As well as the nature of the misconduct itself, your employer should consider a number of factors when reaching their decision, for example:
- Your length of service
- Your prior disciplinary record
- Your attitude and responses to the allegations.
Disciplinary Sanction: Dismissal
If your employer is considering dismissal it must ensure that it deals with things fairly. This means not only following a fair procedure but also having reasonable grounds for believing that you were guilty of misconduct or that dismissal was within the band of reasonable responses. Any failure by your employer could result in claim for unfair dismissal. For more information about these types of claim at the Employment Tribunal, please visit our website at https://lincslaw.co.uk/services/employees/resignation-dismissal-and-redundancy/unfair-dismissal/
Disciplinary Sanction: Disciplinary Warnings
It is recommended that employees should usually be given at least one chance to improve before a final written warning is given. Your employer may be in breach of an implied term in your contract – that of mutual trust and confidence – if warnings, particularly final warnings, are used:
- oppressively for relatively minor misconduct,
- if the sanction given is out of proportion to the misconduct, or
- if your employer does not genuinely believe you have committed the misconduct.
If you believe that a warning was inappropriate or given in bad faith you should raise this.
Live And Expired Disciplinary Warnings
The general position is that your employer can take into account a live warning on your file, but may only take into account any expired warning (and the underlying misconduct) where this is not the main reason for any subsequent dismissal; put another way, where the circumstances justified dismissal anyway. However, the misconduct for which you received a previous warning might still be relevant to the consideration of the reasonableness of your employer’s later action in dismissing you for similar misconduct.
Length Of Disciplinary Warnings
First written warnings might have a time limit of 6 months, for example. Final warnings usually have a time limit of 12 months, but that does not always have to be the case. The length of warning should be tailored to the particular circumstances and might be shorter or longer. Your employer might be justified in extending the period of the warning if you commit a later act of misconduct which is the same or substantially the same as that for which the earlier final warning was given.
Demotion Or Other Disciplinary Sanctions
If your employer is contemplating your dismissal, they should consider whether there may be alternatives such as a demotion, redeployment or a final written warning. Your employer’s disciplinary procedure may expressly provide for alternative sanctions. For demotions, if the procedure to demote is not contractual and there is no contractual power to demote, your employer will need to obtain your consent to do this. A demotion without consent or a contractual power to do so will be a breach of your employment contract. However, you may decide to accept the sanction as an alternative to dismissal.
Lincs Law Employment Solicitors Can Help You
If you are facing disciplinary action and would like a free consultation with one of the team at Lincs Law Employment Solicitors, please use the contact form, engage in a web chat, email contactus@lincslaw.com or call us on 01522 440512 and we’ll be happy to help. Alternatively, for more information about how to prepare for a disciplinary meeting, please visit our website at https://lincslaw.co.uk/blog/preparing-for-a-disciplinary-meeting/
Kathryn Bolton
Associate, Specialist Employment Law Solicitor
Lincs Law Employment Solicitors
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