Kalderon HR

In August this year a Veterinary Group in Suffolk were found to have been “fundamentally unfair” with their disciplinary policy, and the tribunal, held at Bury St Edmund’s, found in favour of the plaintiff.

You can read more about the verdict here, but I would like to take a moment to talk today about the pitfalls of policies and where they can let employers down despite best practice.

If you are an employer, no matter how small or big your organisation, you must ensure that the policies you have in place are robust and appropriate – and you need to make decisions based on those policies, whilst also considering what a tribunal would consider if it were to go that far.

Tribunals will consider the ACAS Code of Practice in their decision making, (Fairness, Thorough Investigation, Impartiality, Employee Rights and Timelines), but how can you ensure that your policies are as fit as they need to be, and what pitfalls can make you stumble?

1. Your policy is too vague. If you don’t understand the definition, then it is possible your staff member won’t either. Vague phrases such as “bringing the company into disrepute” or “inappropriate conduct” can be too broad, and the issue can arise when you attempt to discipline a staff member for conduct that was never clearly identified as a breach. Employment Tribunals will look at whether the employee could have reasonably understood that their behaviour would result in disciplinary action – ACAS Code of Practice – Fairness.
2. Policy hasn’t been reviewed and updated in years. Leaving policies to sit gathering dust and hoping that they will cover what you need in an ever changing world, is a rookie error. So much has changed in the last 5 years, AI technology, Social Media use and Hybrid working to name just a few – it is important to ensure that you are reviewing policies annually at a minimum, and updating legislation changes as and when they happen. Outdated policies can create uncertainty and, more importantly, increase legal risk. (Employee Rights)
3. Your managers aren’t applying the policy consistently. So you have an updated, clear and easy to read policy – but one manager does one thing, and another is still working on the policy from 2019, or worse not interested in following it at all. Even a well-written policy can fail if different managers interpret it differently, and such inconsistencies can undermine the fairness of disciplinary decisions. (Impartiality)
4. Investigation doesn’t match the policy. Employers will sometimes focus too much on the policy breach but not the investigation. Tribunals will focus more on what you did wand why you came to that conclusion, before making their judgement about whether or not it was fair or correct. Investigation’s are vital in the process to demonstrate impartiality and fairness but also employee’s have rights. Rights to be heard, in an appropriate way and in a timely manner. You are not Columbo with your latest case, treat them fairly and justly – investigate appropriately and make sure it is above scrutiny should it go to ET. (Thorough Investigation)
5. Policy says one thing, but the workplace culture says another. A common weakness is the gap between written rules and workplace culture. For example, a social media policy may prohibit criticism of an organisation, yet managers routinely engage in similar online discussions or overlook minor breaches. Employees may then argue that they had every reason to believe such behaviour was tolerated. (Fairness)

Tips:

1. When using a term that is broad, aim to use examples of what this means, especially in areas such as social media, confidentiality and professional behaviour.
2. Review policies annually as a set rule and clarify updates through your HR advisor or consultant.
3. Train managers regularly and maintain disciplinary records to ensure comparable cases are treated similarly.
4. Follow a structured investigation process and document the reasoning behind decisions.
5. Reinforce standards and challenges all breaches and consistently, regardless of seniority.

Don’t make the mistake in assuming your policy alone is enough protection. Tribunals will examine four factors; the quality of your policy, how clearly it was communicated, whether it was applied consistently to all staff, and whether the employer acted reasonably when enforcing it.

If you are looking for changes to your policy library, or need help or guidance with updating them please reach out. Kalderon HR aims to provide professional support for small businesses at an affordable price.