No 1. Failure to properly investigate

As an employer it is paramount that you undertake a proper formal investigation to establish all the facts prior to taking any disciplinary action.

This investigation will form the basis as to whether there is enough evidence to warrant taking disciplinary action

Anyone who it talked to as part of the investigation should be advised it is confidential 

If you are unable to demonstrate that you have properly investigated all the fact your dismissal may be deemed to be unfair in a court of law.

No 2. Failure to follow a recognised disciplinary procedure

It is a legal requirement for all business that employ staff to have in place a formal disciplinary process, the only thing worse than not having in place a formal disciplinary process, is having one and failing to follow it.

The purpose of a disciplinary process is to provide a legally compliant frame work so that both employers and employees know what will happen and protects both parties.

Failure to have and follow a formal disciplinary process will result in any tribunal award automatically being increased for 25%

No 3. Using the people in the process

In order to ensure sure openness and fairness the courts require that different people do the investigation, disciplinary hearing and appeal hearing.

Ideally the structure should be:

• Investigation undertake by employees line manager
• Disciplinary meeting undertake by next level of management
• Appeal hearing undertaken by the next level of management or company director

Whilst this is easy to do in large organisation it can be harder in smaller companies, consider using managers at the same level, one for the investigation and one or the disciplinary meeting. 

No 4. Not setting out and providing details of the allegations prior to the meeting

As an employer you have a legal obligation to provide the employee with all the details of the allegations against them in writing prior to the meeting, you also have to ensure that they have sufficient time to read the information and prepare a defence for the meeting.

No 5. Allowing an employee to keep working rather than suspending them.

In cases of serious misconduct / gross miss conduct employees should always be suspended on full pay pending the outcome of the investigation and disciplinary hearing

As an employer it all to tempting to either allow the employee to keep working if you are having to pay them or suspend them on an un paid basis.

In both cases you are leaving your self open to tribunal claims as:

1.   You will not be able to argue there was a fundamental breach of contract as you allowed to employee to keep working

2.   The employee will have the right to take a claim for unlawful deduction of wages which gives them an automatic right to take tribunal action without any qualifying period.

No 6. Not allowing to the employee to have representation

Under current employment law any employee involved in disciplinary action has the right to representation in any of the meeting associated with the disciplinary process.

They may be accompanied by either a work colleague or trade union representative.

Even if your organisation does not recognise a trade union if the employee is a member of and external trade union they still have the right for them to attend.

No 7. Not advising the employee of possible out come in advance

Whilst it is illegal to make a decision prior to the holding the disciplinary meeting, any employee facing disciplinary action should be advised in writing prior to attending the meeting what the possible out comes of the meeting may be.

No 8. Trying to get the disciplinary over and done with in one meeting and not investigating addition points raised

As part of the disciplinary meeting the employee may raise additional information or points that cannot be substantiated then and there. As an employer it is all to easy to dismiss these points and proceed with the disciplinary process as you want to save time and money.

To be safe the disciplinary meeting should be suspended / re scheduled, the employees should be placed back onto paid suspension the additional point investigated.

Failure to do so would may result in the dismissal being deemed to be unfair in a tribunal.

No 9. Failing to have a break in the disciplinary process

Did you know that if you fail to have a break in a disciplinary meeting to give proper a full consideration to all the facts presented by the employee a tribunal will deem that the decision was made prior to the meeting and therefore any termination of employment was an unfair dismissal

No 10. Not allowing the employee to appeal the decision

All employees must be given the option to appeal against any disciplinary action taken against them, the appeal meeting should be undertaken by someone independent and not involved in the original investigation or disciplinary process.

Failure to give an employee the right to appeal may result in any termination being deemed to be unfair by a tribunal and would result in an additional uplift of 25% in any award