The disciplinary procedure can be a complex and trying time for a company to navigate. This procedure can at times be complicated by an employer’s failure to recognise their duties and responsibilities to those with protected characteristics which remain applicable throughout the investigation, disciplinary and appeal processes.
The right to not be unfairly dismissed
Under section 111 of the Employment Act 2006 (EA06), an employee has the right not to be unfairly dismissed by his or her employer. This right, however, only applies if the employee has at least one year of continuous service at the effective date of termination. So within the first year of employment an employer can dismiss for any reason without consequences, right? Not always.
Sections 132 and 124A EA06 tell us that an employee cannot be unfairly dismissed, regardless of their period of continuous employment, if the reason for the dismissal would constitute unlawful discrimination under the Equality Act 2017 (EA17).
For employers, this means that an employee having less than one years’ service alone will not preclude that employee from bringing a claim in unfair dismissal where that employee has a protected characteristic and can prove that they were dismissed because of that protected characteristic. Employers must therefore not rely on length of service, or lack thereof, to assume they are protected from a potential unfair dismissal/discrimination claim.
Taking a look at your policies
Policy reviews are important. This is an exercise which should ideally be undertaken regardless of whether or not you are commencing or concluding a disciplinary procedure – better to consider your procedures now than to wait until you are in the middle of a disciplinary procedure and realise the policies on which you are relying are in fact discriminatory in their application, or simply not fit for purpose/up to date.
It is crucial that those drafting and implementing company policies, particularly the disciplinary procedure policies, understand what the law says about discrimination and equality, as employers can be caught out where policies create unconscious bias which has an inadvertent adverse effect on a group that shares a protected characteristic, giving rise to potential claims of indirect discrimination.
Commencing the disciplinary procedure
An employer must consider whether commencing the disciplinary procedure can amount to a discriminatory act in itself. Consider whether a precedent has been set within your business that may give rise to a claim of discrimination on the basis of any of the nine protected characteristics. Do your company policies and triggers for disciplinary action apply equally and fairly to all?
Where an employer wishes to commence disciplinary proceedings arising from an employee’s poor performance, it would be wise to consider whether there is a potential or actual disability which could be the cause of the performance issue and could be efficiently handled through reasonable adjustments before proceeding to disciplinary action.
Reasonable adjustments within the disciplinary process
Where an employee has a disability which falls under section 7 EA17, and the employer is aware of the disability, the employer has a duty to make reasonable adjustments.
So, what reasonable adjustments can be made throughout the disciplinary process?
This may look like the provision of a support worker with a knowledge of the employee’s disability and its effects, the provision of auxiliary aids during any meetings or disciplinary hearings, the provision of a transcript to the employee following any meetings or disciplinary hearing or extending time frames where a disabled employee may reasonably require it, to name few.
When commencing the disciplinary procedure, as an employer you must ask yourselves – are there any reasonable adjustments which can be made throughout this procedure to accommodate the employee’s disability?
Of course, the best place to start when determining whether there are any appropriate reasonable adjustments to be made is to ask the employee concerned.
Summary
In summary, it is crucial that when navigating the disciplinary procedure, an employer is alive to any potential or actual protected characteristics which need to be considered and that there are effective and non-discriminatory policies in place which support the disciplinary procedure.
