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An employer is responsible for the behaviour of its employees while conducting business for the employer. As such, the employer is legally entitled to expect a minimum standard of behaviour from its employees. Where this standard is not met, this may lead to grounds for disciplinary proceedings against the employee. Disciplinary proceedings in employment law may also come about as a result of the employee failing to come up to a required standard of work or by him / her being regularly absent from or late for work. Where disciplinary measures are to be undertaken against an employee, there are particular legal formats that must be adhered to by the employer.

Lack of knowledge of the law is no defence in the legal system, however this does not extend to employment law. It is the employer’s responsibility to ensure that all of its employees are aware of the disciplinary processes it follows. Failure to do so will invalidate any disciplinary processes that the business attempts to enforce, because those particular contractual terms are unknown to the employee and are therefore technically outside the contract of employment. In basic terms, the employee should be provided with an employee handbook wherein a section listing disciplinary measures and the employee’s right to appeal is clearly stated. Alternatively, access to a shared public drive on the business intranet would be an acceptable means of communicating the disciplinary and grievance procedure to the employee, providing that the employer has communicated knowledge of the whereabouts and contents to the employee. Many employers use an employee induction day to ensure this ground is always covered with new staff. Any updates to company policy and procedures should equally be communicated to all existing employees to ensure their awareness of change.

The disciplinary policies and procedures alter slightly from one business to the next, however there are certain prerequisites that must be included to make those policies and procedures valid. Communication has already been considered above. Besides communication is the fact that the policy must be in writing and they must be written clearly and intelligibly. A vital piece of information to be provided to each employee regards the person to whom they have the right to appeal if they are subsequently disciplined and wish to appeal against such measures. Failure to provide an employee with any of this basic information may lead to an award being made to the employee based on between two and four weeks’ pay in the event of any future tribunal hearings against that employee.

Where the discipline is on the grounds of gross negligence or gross misconduct, such as fighting or operating machinery while inebriated, the disciplinary process can leap to the final stages of the normal procedure. This does not mean that the employee can be ‘sacked on the spot’. The individual concerned is still legally entitled to an investigation and a hearing where they may put forward their side of the situation, including any mitigating circumstances. In such cases as these, the individual is usually suspended on full pay pending an investigation and hearing and should receive fair and due written notice as to when these hearings are scheduled to take place, where the hearing is to take place and who will be conducting / present at the hearing. The individual must also be informed in writing before the hearing that they have the right to legal representation at the meeting. The representation may be from a union official or work colleague. The employee is not, however, entitled to bring in anyone from outside the business to represent him unless that person is union affiliated.

Disciplinary proceedings that are to be undertaken for any other incidence than for gross negligence or gross misconduct, such as poor time keeping or sub-standard work, must follow the company’s disciplinary procedures as stated in the employee handbook or contract. These tend to follow a similar format, which is a verbal warning, followed by a first written warning and a final written warning. A verbal waning should be recorded in writing to commence an evidentiary trail, as should any minutes taken of any later written warnings. At each stage, the employee should be reminded of their right to appeal against the warning; courtesy alone dictates that the employee is reminded where to find these terms of appeal and who their appropriate line manager is. There is a legal time period after which any warning given to an employee expires, although it is normally stated in either the employee handbook or disciplinary policies. Similarly, an employee only has a limited amount of time in which to lodge an appeal, usually seven working days where reasonably practicable.

Vicarious liability will also apply to personal injury claims as well as employment law issues.

It is very traumatic for an employee to lose his job, especially when a family or other dependents rely on the income. As the effects of the economic downturn have been felt across the country, issues of redundancies and job losses have been a regular feature in the headlines in the news together with reports of increasing unemployment. Added to this trauma, if the employee feels as if the employer was not acting appropriately in ending his employment, what can be done? Are there any legally remedies for the employee to take the matter up with his employer?

In order for an employee to make a case against his former employer for unfair dismissal, it is important to make sure that certain criteria are fulfilled so that the employee could be entitled to make a claim. Although it may be clear to the employee that he has lost his job, he has to make sure that the termination of his employment qualifies as appropriate ‘dismissal’ according to the legal tests. For example, the employee would not be entitled to claim ‘dismissal’ if he resigns from his position or leaves by agreement with his boss. In brief, an employee is only entitled to claim he has been dismissed if either the employer terminates his contract (with or without notice), the fixed term of employment comes to an end without being renewed or an employee is ‘constructively dismissed’. This last case of ‘constructive dismissal’ means that the employer’s conduct amounts to a serious breach of the employment contract, leading to the employee leaving the job because of it (for example, the boss decides to reduce wages without the employees agreement and the employee subsequently walks out).

Although some cases will fit easily into these categories, it is worth checking with an employment lawyer whether the case qualifies, as sometimes the situation is not always as clear-cut as it may appear. For instance, if circumstances change so that an employee can no longer work for his boss, this may not amount to dismissal. On the other hand, resignation may sometimes be seen to be dismissal if the employee resigns as a result of a constructive dismissal (see above).

Another criterion that must be fulfilled to qualify for unfair dismissal claims is whether the employee is eligible to claim. Some categories of workers, such as independent contractors or freelance agents are not seen as employees for these purposes in the eyes of the law. Also, employees who are obliged to retire at the normal retirement age are unlikely to be seen as unfairly dismissed provided the employer has behaved correctly. As a general rule, the employee must have worked for the employer for a minimum of a year to claim unfair dismissal (however, there are exceptions to this rule).

Next it is necessary to consider the reasons for the dismissal. This is important because sometimes the reason means the dismissal is automatically unfair, such as if the employee is taking action over a health and safety issue, or a new owner takes over the business, or the employee is pregnant. Importantly, in some of these cases the employee does not have to have worked for the employer for a year to qualify for automatic unfair dismissal. If the reason for the dismissal is not ‘automatically’ seen as unfair, however, it is necessary to assess the reasons for the dismissal and the procedure which the employer has followed in order to work out whether the employee could make a successful claim for unfair dismissal. It is usually necessary for the employee to bring a claim within a three month period from the date of dismissal to take the matter to an employment tribunal. If an employee believes there has been some form of discrimination, such as on grounds of age, disability, gender or race, a claim for discrimination can be brought at the same time as a claim for unfair dismissal.

What is the procedure that the employer should follow when dismissing employees? The answer depends on when the employee was dismissed and so it is recommended that legal advice is sought for further details of the various obligations on the employer. For example, after 6 April 2009, an employer taking disciplinary action or dismissing employees is advised to follow the Acas Code of Practice on disciplinary and grievance procedures to avoid paying more compensation in a successful claim.

Before making a claim for unfair dismissal, it would be advisable for the employee to consider the likely level of compensation available. Compensation usually comprises a basic award and a compensatory award. A basic award is calculated by looking at the time of service of the employee and the level of pay – a maximum basic award would be £12,000 for a termination from 1 February 2011. The compensatory award relates to loss of earnings (including other employment benefits) and can be substantially higher.

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