Area of work: HR/Employment Law
Sector: Professional Services
Date/Length of relationship: 2017 – present
EML advised its client in relation to a potential gross misconduct issue, the outcome of which was a Final Written Warning. The employee appealed, and EML was appointed to hear the appeal.
The client had taken advice from EML previously regarding a less serious disciplinary matter, having been originally referred by their accountant.
It was apparent that the employee concerned had the intention of leaving the company, regardless of the disciplinary proceedings, and was determined to inflict as much damage on the client as possible in the process. It was therefore paramount to demonstrate that the appeal process was robust and impartial in order to head off any potential claim of constructive dismissal that they might be minded to bring. The only people with sufficient authority internally to hear the appeal were inexperienced in such matters, and did not feel sufficiently confident. Furthermore the client wished to relay a message to other employees that disciplinary issues would be dealt with in a robust and legally compliant manner.
Our first step was to arrange for a member of the EML team who had not previously been involved with providing advice to the client on this issue to hear the appeal. EML’s offices were used for the hearing as this was more convenient and private than holding it on the client’s premises.
We notified the employee of the arrangements of the appeal hearing, ensuring that the ACAS Code of Practice and associated Guidance on Disciplinary and Grievance matters was followed, and that there was compliance with the requirements for a fair appeal process set out in related case law.
We conducted the hearing by addressing each ground of the employee’s appeal in turn, allowing the employee the opportunity to add anything further to what had been stated in the appeal letter and asking the employee further questions to probe their appeal grounds.
The hearing was recorded and transcribed to produce a full record of the meeting, which we then forwarded to the employee for agreement.
Following the hearing, we conducted further investigation, which included interviewing the disciplining officer and a number of other witnesses. At every stage of the investigation and hearing process, we maintained a detailed paper trail.
Finally, we considered the evidence in conjunction with the employee’s written and verbal representations before making a decision.
We advised the employee of the decision in writing, outlining the detailed reasons for the decision that had been reached in relation to each separate ground of the appeal.
The appeal was rejected and the original decision was upheld. The employee concerned left the business threatening legal action, however no such action was forthcoming. A comprehensive and compliant disciplinary and appeal process ensured that there was nothing that the employee could reasonably challenge.
The client had been convinced that the employee would try to bring a Tribunal claim, and worried about the legal costs involved in defending it so they were extremely happy with the outcome.
EML has since assisted the client with the implementation of GDPR processes. They have also taken up a joint HR and H&S Retainer, which will provide them with ready access to support on all HR and H&S issues, including ensuring that their documentation is compliant and up to date.
If you would like more information on the HR and Employment Law services described in this case study, please contact Debbie Knowles on 01942 369678.