16th September 2015

Can You Fix it? Yes You Can! #MakeItRight

Have you met Jackson yet?  Surely you must know Jackson!  He is the charismatic purple muppet on the new 3 advert. For those of you have not had the chance to see it yet, it shows Jackson having a terrible day where anything that could possibly go wrong, does go wrong. However the character survives the tough times and decides to #MakeItRight.  In the employment law world this reminded me of a legal principle related to disciplinary and redundancy procedures that can be very beneficial to employers. A defect that may occur during a disciplinary or redundancy process can be cured if it is addressed at any appeal hearing.

Dangers of flaws in your disciplinary process

Obviously nobody is perfect and mistakes can happen during a disciplinary or redundancy process. For example a manager carrying out a disciplinary investigation might not fully investigate all of the issues raised by an employee or an employee may not have been provided with a meaningful consultation prior to his role being made redundant. These mistakes can ultimately be costly to an employer.  The bad news is that sometimes these errors or omissions can lead to a fair reason for dismissal being rendered unfair. If a dismissal is rendered unfair then an employer may be ordered by an employment tribunal to pay compensation to an employee.  Furthermore an unreasonable breach of the ACAS Code in procedure can lead to a 25% uplift in any amount awarded by a tribunal.

Using an appeal to cure these defects

The good news is that the law does provide a means for an employer to cure these defects if, for example, a full and proper hearing is carried out during the appeal. The appeal must be used to address the claims made that have been left unanswered during the disciplinary or redundancy process. If the employer can show that they have considered these claims and the reasoning for ruling them out, then an employment tribunal will be a lot more likely to decide that the dismissal was fair. The appeal hearing must represent a rehearing rather than merely being a review of the decision at the disciplinary hearing.

What an employer can learn

Managers carrying out a disciplinary or redundancy process are often going to make mistakes. This does not mean that the dismissal has to be unfair and if you take legal advice early enough, you can hopefully remedy the error and avoid compensation. So if you are in a situation where ‘stuff sucks’ (you will have to see the advert) because of an error or omission an employee has made during a disciplinary or redundancy process, take advice and use this opportunity to #MakeItRight at the appeal hearing!

Andrew Wallace
Solicitor – Employment Law



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