Taking Your Punishment

Recently an email came into the office raising a question about an employee, Ken, who – yet again – had failed to call in sick (or make arrangements for someone else to make the notification on his behalf),despite having a fairly minor condition. He’s already on a final warning for this very thing following a series of failures to call in sick. On each occasion he said he was too sick to call in. In the past we have given him the benefit of the doubt and either treated matters informally and even in the formal process we have cut him some slack. He is, however, incorrigible.

I sighed when I received it, although I advised that the matter should be investigated formally. The tribunals are all too keen to find a dismissal in these circumstances to be unfair: “You’ve dismissed him for just one more failure to call in? Was there really no other alternative?” Well, of course there’s an alternative, but it begs the question if the tribunals ride roughshod though employers’ requirements, why have rules and standards and have to put up with this nonsense in the first place?

Quite simply, tribunals should find dismissal following repeated minor breaches to be unfair. This isn’t just my opinion by the way. This is what they are actually supposed to do. However, they often allow employees to argue that the way they have been treated throughout the discipline process is unfair, leading to a lengthy examination of the entire history, with all the costs that involve. I could see that Ken with his repeated minor breaches might well argue successfully before a tribunal that the sanction of dismissal (richly deserved though it is) would be unjustifiably harsh. Then my day perked up when I read the findings of the Court of Appeal in Davies v Sandwell Metropolitan Borough Council. Their lordships, having chewed their Weetabix with particular vigour that day, were clearly not prepared to put up with rubbish. Good on them!

The Court has provided guidance that employment tribunals should not be drawn into lengthy examinations of irrelevant material surrounding an employee’s previous disciplinary record. They added that tribunals are not empowered to decide whether a warning should have been given or not. They can only examine whether a warning was given in bad faith, or for an oblique or improper motive; or was clearly inappropriate.

Unless a warning was given in bad faith or manifestly inappropriate, it will have been validly issued. Arguably, whether a warning was inappropriate may still provide grounds for argument, but this decision may well remove the risk in Ken’s case where the employer has erred on the side of caution every step of the way.

In the first instance discipline is about guiding the employee and giving him the opportunity to demonstrate on-going commitment to your reasonable standards. If he can’t or won’t and you have provided him with every opportunity to do so over a period of time , then it’s entirely reasonable to part company. Let’s hope the tribunals follow the Davies decision. We may get a slightly fairer legal environment.

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