Discipline and Grievance

by Kate Russell

The reasonable employer

There is a fictional legal character known to the tribunals as the Reasonable Employer – you! This is the test against which your behaviour and decisions will be measured. The reasonableness of your response will vary, depending on the situation and the relevant facts. The test is whether a reasonable employer in the same employment situation would also have done the same as you.

Both employer and employee are expected to behave reasonably within the employment contract, but the reality is that as the financially stronger party in an employment contract you will always have to demonstrate a higher level of reasonableness than your employee.

So you must demonstrate reasonableness at all times. What does this mean?

  • Be fair and consistent in your approach.
  • Don’t rush into a decision. Be considered and reflective.
  • Be transparent in your actions and decisions.
  • Put yourself in the other person’s shoes.
  • Take all relevant factors into account.
  • Take proper account of mitigation.
  • Take advice and discuss the issues with the employee.
  • Make reasonable adjustments and consider all possible alternatives.
  • Be able to justify your actions.
  • Keep accurate, objective, contemporaneous records.
  • Be courteous, listen and investigate fully.
  • Have clear standards. Communicate, monitor and manage them.
  • Act in a timely way and give people a reasonable amount of time to improve.
  • Be proportionate in your responses.

Note taking

It’s impossible to sufficiently emphasise the importance of taking clear accurate notes.

Notes of formal disciplinary discussions are essential. These will be important if the decision is appealed internally and vital if your employee is dismissed and brings a claim for unfair dismissal. The notes should accurately reflect your employee’s explanation and any admissions he might make, the questions put and his responses. They should also create a record of the formalities of the hearing so that there is no doubt that he was advised of all the important issues.

Your records should give details of the nature of any breach of disciplinary rules or unsatisfactory performance, the defence or mitigation put forward, the action taken and the reasons for it, whether an appeal was lodged, its outcome and any subsequent developments. These records should be kept confidential and retained in accordance with the disciplinary procedure and the Data Protection Act 2018, which requires the release of certain data to individuals on their request. Copies of any meeting records should be given to your employee if he requests it, although, in certain circumstances, some information may be withheld, for example, to protect a witness.