Unwarranted disciplinaries can cause Employment Tribunal claims

Employment Law Advice Solicitors
March 23, 2013

The recent Employment Appeal Tribunal case of The Carphone Warehouse Ltd v Martin gives employers an insight into the issue of when disciplinary sanctions may or may not be warranted and what the potential consequences of an uwarranted (threatened) disciplinary is. We’ll take a look at this specific issue in this post and will do so by examining the following:

What scope do employers have to discipline their employees?
When might a disciplinary (or threatened disciplinary) be unwarranted?
What are the potential consequences of an unwarranted disciplinary?
What should you do if one of your employees threatens you with an Employment Tribunal?

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What scope do employers have to discipline their employees?

Employers have wide scope to discipline their employees for misconduct in the workplace. Generally, the only guidelines that an employer has to follow in disciplining an employee is that the investigation and disciplinary process should be fair and reasonable. Guidance is available from the ACAS Code of Practice on Disciplinary and Grievance Procedures. However, if the disciplinary process is not fair and/or reasonable and the employee is unhappy with the process or the outcome then this may cause legal difficulties for an employer.

When might a disciplinary (or threatened disciplinary) be unwarranted?

In order to discipline (or threaten to discipline) an employee, there must be reasonable justification for doing so. You should have been provided with clear, unambiguous allegations against the employee which reasonably warrant an investigation and disciplinary. Unless a disciplinary (or the threat of a disciplinary) is “manifestly inappropriate” then the employer has a wide scope to take reasonable steps. What is manifestly inappropriate would depend on the facts of the particular matter.

What are the potential consequences of an unwarranted disciplinary?

The potential consequences of an unwarranted disciplinary are the following:

A potential decrease in productivity and/or the morale of that particular employee and potentially others
Threatened litigation or the pursuit of litigation in the Employment Tribunal

If you unfairly discipline (or threaten to discipline) an employee then – depending on the circumstances – this could be used as the basis for a variety of claims (or evidence towards these claims) in the Employment Tribunal, including:

Constructive dismissal (if the employee treats the unwarranted disciplinary as a fundamental breach of contract)
Discrimination (if the reason for the unwarranted disciplinary is because of an employee’s protected characteristic)
Harassment (if the reason for the unwarranted disciplinary is because of the employee’s protected characteristic)

What should you do if one of your employees threatens you with an Employment Tribunal?

If you’re threatened with an Employment Tribunal then it’s normally advisable that you obtain specialist legal advice from an employment law solicitor. There are generally two options that you can pursue if you’re threatened with litigation:

Attempt to settle the threatened claim (through a compromise agreement, for example)
Ignore the employee’s threats

If you pursue the former option then you may be able to settle the claim prior to Employment Tribunal proceedings being issued. This avoids the stress, hassle and cost of an Employment Tribunal. If you pursue the latter option then the employee may just drop the matter or, alternatively, they may decide to issue a claim in the Employment Tribunal. This is obviously the worst case scenario – even if the employee doesn’t have a reasonable case.

Employment Law Advice Solicitors are compromise agreement solicitors based in central London