Employers who confuse capability and misconduct policies do so at their own risk, warns barrister Charles Price.

Mike has been repeatedly swearing at members of staff and is called in for a head-to-head with his employer. The employer gives him a telling off and sets targets for improvement as per the capability process. This approach may seem lenient and practical but, in reality, fails employees and exposes the employer to legal action.

If an employer wants to deal with such an example of misconduct, the employee should be written to, inviting them to a meeting with an outline of the charges and details of evidence against them as per the contractual and statutory dismissal and disciplinary procedures.

If the company wants to give the employee a verbal warning then this must only be given after considering all of the evidence, including the employee’s own version of events.

Employers often make the mistake of treating instances of misconduct with a performance policy perhaps with a view that they are being lenient. This approach, however, means that the employers are exposing themselves to unfair dismissal, breaching the employee’s contract and the statutory dismissal procedures.

The Employment Act 2002 (dispute resolution) regulations

The above regulations dictate that the standard dismissal and disciplinary procedure applies:

“When an employer contemplates dismissing or taking relevant disciplinary action against an employee”. If an employee is dismissed without complying with the procedure, the dismissal will be automatically unfair with a minimum of four weeks’ pay.

If the employer goes on to dismiss the employee, even if the contractual performance procedure has been followed to the letter, but the tribunal identifies the issue as a disciplinary one and concludes that the employee is being disciplined by the back door, then the employer can be punished. Not only will the employer face the above sanction but also the usual compensation awarded for an unfair dismissal, including compensation for loss of wages.

Discrimination

The employer must make sure that the same policy is consistently adopted with each employee. If one employee can show that his or her colleague was treated under the company’s performance policy, rather than disciplinary, then the procedure could feature as part of a discrimination claim.

The reverse position

The vital feature of any performance policy is that the employee must be given a chance to improve before he or she can potentially be dismissed. This should involve express targets or aims; something a disciplinary policy would not accommodate. Therefore, again, the employer who drags the underperforming employee through a disciplinary procedure may face an unfair dismissal decision at tribunal.

Further, it is quite common for an employee to be issued a warning when first under performing, and then dismissing the same employee when he or she fails in another aspect of his or her work. The employee must be given the opportunity to improve in both aspects of work and again an unfair dismissal judgment is the likely outcome.

This article is for academic purposes only. Formal legal advice should always be sought to deal with the individual issues of the case.

For further information, please visit: www.charlesprice.net