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Employment Law Update – Let the punishment fit the crime

After he has heard all the evidence at a disciplinary hearing, the disciplining officer must decide whether it is appropriate to award a disciplinary sanction.

It is important that any disciplinary action taken is proportionate to the misconduct which has occurred, so before deciding whether to impose a disciplinary sanction and what sanction to impose (e.g. first warning, final warning or dismissal); the disciplining officer should consider carefully the background to the case. Before deciding on any disciplinary penalty, consider:

  • The seriousness of the offence, and whether the procedure gives guidance
  • The impact of the employee’s actions
  • The penalty imposed in similar cases in the past
  • The individual’s disciplinary record and general service
  • Any mitigating circumstances
  • Whether the proposed penalty is reasonable in all the circumstances
  • Any current warnings for related offences.

A common mistake is to award too harsh a sanction. This often happens where an employee has been a nuisance for some reason, but the company has not dealt with it effectively.

The risk is that the employee can resign and complain of constructive unfair dismissal. It’s far better to err on the side of caution if in doubt. For example, if you are faced with a situation where a misconduct issue comes down to one employee's word over another's, give the accused the benefit of the doubt, especially if he has a previous good record and long service.

Here’s a case which illustrates the principle. Ms Roldan was a Filipino nurse. She had worked for the Trust for four years. A healthcare assistant, Ms Denton, made a complaint that Ms Roldan had mistreated a patient and she was suspended pending a disciplinary investigation.

She was told only that a serious complaint had been made against her. During the investigation, Ms Denton was interviewed and completed an incident report. Ms Roldan and her supervisor were also interviewed.

Eventually the panel dismissed Ms Roldan for gross misconduct. The panel accepted Ms Denton's evidence, saying that it found Ms Roldan’s evidence to be unreliable and inconsistent. Her appeal was unsuccessful. As a result of this she not only lost her job, but also her work permit and therefore her right to work in the UK.

She was also the subject of a criminal investigation by the police. She complained successfully to the employment tribunal. The court found the dismissal to be unfair.

It said that, because of the serious consequences for Ms Roldan, the employer had to be particularly balanced in its investigation. It criticised the disciplinary panel's preference for Ms Denton's evidence, which was purely on the basis that it could not see any reason why she should lie.

It also said that the panel should have ‘cast its net wider’ to find other witnesses to Ms Roldan's alleged actions and that she should have been informed at an earlier stage of the exact nature of the allegations made against her.

The Court of Appeal agreed with the decision and added that where there are allegations of misconduct and there are two opposing accounts of an incident with little or no corroborative evidence either way, employers are not required to believe one employee and disbelieve the other.

It is perfectly correct for the employer to say that, while not disbelieving the complainant, it has found the case against the accused to be "not proven". The benefit of the doubt is therefore given to the accused.

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