One of the aspects of a disciplinary process that frequently trips employers up if they are taken to tribunal is being able to show they have made fair decisions.
That doesn’t mean they haven’t made fair decisions, but frequently the issue is that the decision may well have been fair, but because of how it was made, or because of the lack of evidence as to how it was made, it is not at all clear, and a tribunal judge or panel has an uphill job trying to work out whether a claim should be upheld or not.
An important way of avoiding this trap is to ensure that decisions in disciplinary decisions are conducted in two stages. Often that doesn’t happen, and managers will just reflect a bit after hearing the evidence, and make a decision – to dismiss, or to issue a warning or some kind, or to do nothing.
But introducing a bit of structure into the decision-making process and two clear stages can be enormously helpful if your decisions get challenged later, particularly as you may end up being questioned about your decision months or even years later if you do end up in a tribunal.
The first stage in a disciplinary decision is to decide, on the balance of probability, whether the misconduct the individual has been accused of actually happened, either exactly as alleged or otherwise.
At this stage you’re not considering sanction at all, you’re just deciding what happened. Examine the evidence, make findings of fact where necessary, decide what you think happened, and write that down, together with your reasons for coming to that conclusion.
Assuming you’ve decide that on the balance of probability the alleged misconduct did happen, you now need to decide on a suitable sanction. Don’t automatically jump to a sanction. Take into account mitigation argued, previous record, similar situations that have occurred previously.
Consider what the options are, and show you’ve considered them, by detailing the reasons for rejecting alternative sanctions.
This is particularly important if you are dismissing someone. Record the alternative options available, usually a final written warning, and then document why you’ve decided that sanction isn’t appropriate in these circumstances.
That’s it! It’s a simple process, and its one that probably takes place in the head of most experienced hearing managers anyway. But by separating it out, following a structure, and recording reasons and alternatives considered, you are significantly reducing the likelihood that someone will bother challenging it, and have put yourself in a very strong position should you need to explain or defend your decision at a later date.
If you’d like further guidance on how to make a fair disciplinary decision, do get in touch.