Disciplinary Penalties: You’ll Have Done Your Time?

This is an interesting one.  An  Employment Appeal Tribunal has recently ruled that an employer acted fairly in dismissing someone while taking into account a number of disciplinary issues that were, according to their procedures, ‘spent’.

The case is an extreme one, with the employer having taken 18 formal actions against the individual over a 12 year period.  The employee then did something that carried a mandatory final written warning.  However, the employer decided that the previous disciplinary record, in spite of all penalties having expired, should be taken alongside the latest misdemeanour, leading to their deciding to dismiss the individual.  Most Disciplinary Procedures are quite clear on how long a warning will remain on an individual’s personal file, and most employees will assume that, once that time has passed, they no longer need to worry about the record. There are, however, policies that say a record can be kept longer (even indefinitely) for a range of purposes – possibly the most common being to use as a deciding factor in a redundancy situation, but there are others.

For years, I’ve advised people to make a Data Subject Access Request for their personal information once they’re clear of the penalty, so anything that should no longer be on their employment record will be removed, just in case they get taken into account in any future situation (e.g. redundancy).

One of the problems is that very few companies have the resources to be meticulous about keeping their staff records (or their other filing) absolutely up to date.  The result is that, even if the policies say nothing, records of things that have happened years ago can remain on the file to be seen by whoever next needs to access it.  If that happens to be for a future disciplinary, is it reasonable to expect an investigating officer to ignore that information once they’ve read it?  They may try hard not to consider it but, subconsciously perhaps, they now know this individual has a history.

Even if that history has no relevance to current circumstances.

 

I’d be interested to know your thoughts on this subject, so please leave a comment. Alternatively, if you’ve been affected by a similar issue and would like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

 

The future for Employment Tribunal fees?

Applications to the Employment Tribunal in Great Britain have nose-dived since fees were introduced in 2014. But is it good for 70% more people to bite their lip? And is there an alternative to calling their bluff?

Recent Employment Tribunal figures show that the total number of claims for unfair dismissal in Great Britain fell to 12,652 in 14/15.  Compare this to the 92,000+ unfair dismissal claims in 11/12.  While cause does not necessarily imply effect, the timing of this fall correlates exactly with the introduction of fees for each application to the ET.  The recent figures confirm the trend implied by previous figures since the introduction of the fees, evidence enough to convince the current Scottish Government to announce that, under the new powers in the Scotland Act, and IF they are re-elected in May, that they will withdraw the fees from the Scottish ET (which would bring Scotland into line with Northern Ireland, where the fees were never introduced in the first place).

Few people who take a case to ET return to that employer, even fewer successfully raise a claim and stay employed there. Conversely, the costs of recruiting and training someone new are enormous – the 2015 CIPD/Hay Resource & Management Planning Survey indicates that recruitment costs alone can be up to £10,000, not including training and development.  Compare that to the costs associated with resolving a problem so a member of staff can remain a member of staff.

At the same time, of the unfair dismissal cases that were upheld, the median award was £6,955, a drop in the ocean compared to the legal costs, operational disruption and emotional upheaval involved in a Tribunal – most often, there are no winners.

Far better would be to find a mutually acceptable solution – whether through mediation, developing managers or by introducing more effective processes, or a combination of all three. Invest a little in mechanisms to avoid the ultimate employer/employee conflict, and potentially boost morale and productivity into the bargain, or pay the costs – the choice is yours.