What should you know about unfair disciplinary action?

Alisa Mistry -

No one wants to be the bad guy, and no small business owner wants to be on the defendant stand in an unfair dismissal lawsuit.

Unfair disciplinary action is messy, and the consequences of flubbing it can be fairly brutal. When the time calls for disciplinary action, you must remain fair, consistent, and impartial. It helps create a positive work culture, build trust between you and your employees, and it protects you and your business from nasty legal disputes.

One of my particular specialities is helping new businesses build strong HR foundations and making sure they stay compliant with the law before they grow. Being involved in the process of building small business HR processes from the ground up has shown me a thing or two about what a good disciplinary process looks like, and the steps you should take to avoid being taken to court.

I’d like to share what I’ve learned and offer some guidance about when disciplinary action is unfair, common mistakes small businesses make with disciplinary action, and how you can avoid them.

Identifying Unfair Disciplinary Actions

Unfair disciplinary actions are those that are disproportionate or unjustified given your employee’s behaviour or performance. They fall outside your established, documented procedures for disciplinary action, or are inconsistent from how you’ve dealt with similar cases in the past.

This may look like:

  • Disproportionate Penalties: Doling out harsher, stricter penalties than the situation calls, or compared to past similar incidents, e.g. firing a new employee for a first minor offence
  • Lack of Evidence: Giving penalties or disciplinary action without proof to support the decision
  • Discriminatory Practices: Any punitive measures influenced by your employee’s protected characteristics like age, gender, ethnicity, or religion
  • Inconsistency: Disciplinary actions were taken against one employee for an offence while ignoring a similar behaviour from another (for example, that can be the case when there are too many sick days taken)

Unfair disciplinary actions are governed by the Employment Rights Act 1996. According to the act, an employee has a right to a fair disciplinary process. That means being informed of any actions brought against them, having an opportunity to defend themselves, and being allowed to appeal any decision made.

In terms of what that looks like, the ACAS Code of Practice on Disciplinary and Grievance Procedures gives some guidance on how to make a disciplinary process fair. In particular, it emphasizes the need to follow a fair process, from establishing the facts of the situation to allowing the employee to be accompanied to the meeting.

Common Mistakes Leading to Unfair Disciplinary Actions

There are a lot of ways you can mishandle a disciplinary process if you don’t have a clearly documented process and consistently apply it.

It’s common for well-meaning small business leaders to lack HR training and expertise in the intricacies of UK employment law. Many small businesses lack a clearly defined, documented disciplinary process to provide records of issues and written warnings given.

You can be a good boss and still get things wrong from time to time. Here are some of the common mistakes I see small businesses make that can lead to unfair dismissal claims.

Lack of Clear Policies

This is one of the big ones. I can’t stress enough how important it is to have policies which outline what counts as misconduct, and the steps to take for disciplinary action. They reduce the ambiguity in disciplinary hearings and are your first line of defence in unfair dismissal legal disputes.

Failure to Investigate Properly

Not doing a thorough and impartial investigation of alleged misconduct can lead to unfair disciplinary actions. Establish the facts for each case before making a decision.

Lack of Training

Small business owners and core leadership often lack proper training in disciplinary processes. The CIPD guide to disciplinary procedures has a guide to the importance of proper training for disciplinary action.

Poor Communication

One of the first things you should do when engaging in disciplinary procedures is to inform your employees of the actions taken against them. Keep the record straight and the doors of communication open, to avoid misunderstandings and perceived unfairness in the process.

Documentation Challenges

This is an important and often overlooked measure. Your documentation of the disciplinary process is your saving grace when accusations of unfair treatment are brought against you.

Keep records of the alleged misconduct, the steps taken in the investigation process, the reasoning behind your decision, and the evidence involved to support it. Flubbing the paperwork can compromise the fairness of the process and lead to legal risks if your decision is challenged.

The Role of Consistent Policies and Documentation

Your disciplinary hearings start and end with having clear and consistent policies and documented records of every step. They serve as a reference point for you and your leadership team. The outline what is and isn’t acceptable behaviour at the workplace, and what disciplinary actions are suitable for a given infraction.

Proper documentation covers your backside when an unfair disciplinary action lawsuit is brought against you.

Making your disciplinary policy is a collaborative process that should involve your stakeholders, your core leadership and management, your employees, and your HR expert if you have one. That way, your policy shares a balance of perspectives and reflects your company culture.

When you initiate a disciplinary process, make notes of every step: from the initial warning to the final decision. Take notes from investigation meetings, any warnings issued, and any relevant email communications. That trail of evidence can help save your company when your decisions are questioned and the matter is taken to court.

Once you make your policy, you’ll then want to communicate it to your whole team. You can achieve this in several ways:

  • Employee Handbooks: Outline your disciplinary procedures in your employee handbooks, and make sure everyone on your team has access to them
  • Training Sessions: Conduct regular training sessions to ensure your leadership and management understands the proper procedures to take. It’s also an opportunity for them to ask questions, and you to gather feedback
  • Regular Updates: Communicate any changes promptly, whether through internal newsletters, team meetings, or Slack

Have a Disciplinary Process That Treats Your Employees Fairly

Making unfair decisions in your disciplinary process can dim your employee morale and get you tangled up in sticky legal consequences. Having a fair disciplinary process not only prevents that from happening but also makes the foundation for a respectful and productive work culture.

This is tricky ground for many people who run a small business, and if you need some assistance, I or another HR advisor at Charlie will be glad to help you.