Question and Answers

Here are the last few questions – and our outline answers – from our recent webinar on Disciplinary Issues in the Workplace.

What’s the best way to manage disputed notes from meetings, particularly where participants try to “re-write” history after the meeting?

We share your pain – we have had numerous clients complain that employees have sought to “re-write” what happened at a particular meeting with the benefit of hindsight.  It is for this very reason that we usually recommend that employers do not seek to agree any meeting notes with the employee concerned.  The best approach is generally for the employer to arrange for somebody to be present at the hearing to take notes of what is said.  The non-statutory Acas Guidance recommends that this is somebody who has not previously been involved in the case.  When typed up, these notes should then be supplied to the employee after the hearing. If the employee wants to take their own notes, then so be it.  But there is no obligation on the employer to agree one set of notes.  If the employee is unhappy with the notes that have been taken by the employer, consider appending any points of dispute to the notes on a separate sheet.  If the matter ends up in an Employment Tribunal, it will be for the Tribunal panel to reach its own conclusion about what happened and whether any discrepancies are material to the issues.

Can you take into account previous warnings given in a disciplinary outcome letter?  What about expired warnings?

An employer is entitled to (and in fact should) take into account previous disciplinary warnings when deciding the appropriate sanction for the alleged misconduct – assuming the warnings are still live.  The fact that a warning was issued for a different disciplinary issue does not matter, although the employer’s disciplinary policy should make it clear that any further misconduct during the course of the live warning could result in further disciplinary action, up to and including dismissal.  If it refers to escalation in the event only of “similar” misconduct, then the employer may be hamstrung as a result.  This should ideally be spelt out to the employee in the letter issuing them with the warning. 

In terms of expired warnings, an employer cannot use an expired warning to turn conduct that would not otherwise constitute gross misconduct into gross misconduct.  An employer can, however, have regard to previous conduct, regardless of the fact that it was the subject of an expired warning, when deciding on the sanction for a dismissable offence.  In exceptional circumstances, a dismissal which takes into account expired warnings may be fair.  Your freedom to do this may be limited by your disciplinary policy. If this says in terms, as many do, that expired warnings will be removed from the file and not relied on for any purpose, then it is going to be the next best thing to impossible to show it to be reasonable to use them anyway. Absent that express provision, we are back to the basic question of whether dismissal was reasonable in all the circumstances and for that purpose an employer could not be required to treat an employee whose final warning has only just expired as having forgotten all the lessons they were supposed to learn from it. However, the longer ago that the warning expired, the harder it is to rely upon it safely.

What if an employee raises a grievance during the disciplinary process claiming discrimination/harassment and it is being used as a defence to the allegations, but it is not related to the manager hearing the disciplinary issue?

As we discussed on the webinar, if the grievance essentially constitutes the defence to the employer’s claim that the employee has committed an act of misconduct, it would usually be sensible to deal with the matter at the same time. If it is not related to the manager hearing the disciplinary issue, then there should be no problem in that particular manager dealing with the grievance at the same time.  The Acas Code of Practice on Disciplinary and Grievance Procedures reflects this and states that where the disciplinary and grievance cases are related, it may be appropriate to deal with both issues concurrently. If it is related to the intended disciplinary manager then it will be best practice to get someone else to hear it but the employer can still potentially combine the grievance and disciplinary hearings, since the two are inextricably linked and many of the facts at issue will be the same.

If you missed any of our previous posts on this series, they are available to read here: