What sanction should be given to an employee found guilty of misconduct?
Where an employee is found guilty of misconduct as part of a disciplinary hearing, the disciplinary officer must decide what an appropriate sanction would be.
We discuss the different types of sanctions and the considerations the differing points the disciplainry officer needs to consider when making the decision.
Types of Sanctions
Most disciplinary procedures provide for a 1st written warning, 2nd written warning, final written warning, dismissal with notice or summary dismissal in cases of gross misconduct. Some procedures also allow for action short of dismissal, such as demotion.
- First written, second written, and final warnings
Employers will usually start with a 1st written warning for a minor first-time offence and build on this for any subsequent findings of misconduct. The ACAS Code of Conduct recommends employees should be given at least one chance to improve the conduct (in other words, a warning) before a final written warning is given. Employers need to be careful when issuing warnings as this can come with risk.Employers who issue final written warnings for relatively minor conduct may be seen to use such warnings in an oppressive manner. If the sanction is out of proportion to the offence this may be considered a breach of the implied term of mutual trust and confidence, giving rise to a claim for breach of contract.
- Demotion or other sanctions
If the disciplainry officer is contemplating dismissal, they should consider whether there are any possible alternatives to dismissal, such as redeployment, demotion or loss of seniority. It should be noted that taking such steps without a contractual right to do so could result in claims for breach of contract. These alternative sanctions may only be applied if allowed for in the employee’s employment contract, or with the employee’s agreement. It is therefore important to refer to the contract before deciding on a sanction.
If the disciplainry officer is considering dismissal, they must ensure that a decision to dismiss satisfies all the requirements of fairness. Employers have often lost cases where, despite having followed a fair procedure, they have not persuaded an Employment Tribunal that they had reasonable grounds for believing that the employee was guilty of misconduct or that dismissal was within the band of reasonable responses.
Deciding an appropriate sanction
Part of the role of the disciplinary officer is ensuring the sanction is appropriate in the circumstances. Sometimes the conduct may be so serious that a first written warning appears too lenient, and dismissal may feel too severe a sanction. Thankfully cases passing through the Employment Tribunals have helped provide some guidance on what to consider when reaching this decision. They recommend to
- Look to your disciplainry procedure for guidance as to what an appropriate sanction in these circumstances would be. Employers should ensure that their disciplinary procedures are drafted flexibly so that they can apply the appropriate sanction without having to start with a first written warning in serious cases.
- Consider what action the company has taken in any previous similar cases.
- Consider the nature of the misconduct itself and whether this is considered as gross misconduct under your disciplinary procedure.
- Consider the explanation for the conduct provided by the employee as part of the disciplinary process. In cases passing through the Employment Tribunals, Judges have believed an employee who admits their conduct was unacceptable and accepts advice and help to avoid this happening again may be regarded differently from one who refuses to accept responsibility for his actions, argues with management or makes unfounded suggestions that other have conspired to accuse him falsely.
- An employee’s length of service. Employment Tribunals have found it was relevant to consider that an employee had 20 years’ service and no previous warnings when considering an appropriate sanction. An employee’s length of service may also count against them if they should have known better than to behave in the way they did and were aware of the standards expected of them.
- Consider the employee’s prior disciplinary record, including consideration of live warnings.
When deciding the appropriate sanction, the starting position is that employers can consider any live warning on the employee’s personnel file. Once a warning ceases to have effect, it cannot be relied to escalate a sanction. For example, if an employee’s first written warning expired on 1 Dec 2022 and was found guilt of minor misconduct on 10 Dec 2022, an employer can not sanction him with a second written warning to follow on from the first as this had expired.
Author: Shamaila Gul, Employment Law Solicitor at Howarths
If you have any questions on the different types of sanctions and what sanctions to award in specific circumstances, then please get in touch with the Employment Team on 01274 864999.