The recent Luis Suarez “biting incident” has sparked debate about the appropriateness of disciplinary sanctions. So what should employers take into account when disciplining an employee?
On 21 April 2013, during a football match between Liverpool and Chelsea football clubs, Suarez appeared to bite an opponent player. He admitted violent misconduct, was fined by Liverpool and issued with a 10-match ban by the Football Association (FA).
Suarez had until midday on 26 April 2013 to lodge an appeal against the ban but he chose not to do so, despite his Manager criticising the FA for issuing inconsistent disciplinary sanctions to players guilty of violent misconduct. The case raises some interesting and important points for employers when considering taking disciplinary action against their employees, whatever their industry.
Firstly, employers should clearly identify the disciplinary allegation. Having done so, employers should then consider all of the evidence to determine whether the allegation is substantiated. This includes taking into account any representations made by the employee.
The tricky part is then deciding what disciplinary sanction is appropriate, as it must fall within a ‘band of reasonable responses’ in order for it to be legally ‘fair’. If the outcome is too harsh and falls outside the band, the employer could risk receiving and losing an Employment Tribunal claim.
All of the evidence, including the employee’s representations, should be factored into the employer’s decision-making process. Employers are entitled to look at an employee’s disciplinary record as part of that process. As with Suarez, if there is a pattern of misconduct on the employee’s record, then a more serious disciplinary sanction might be appropriate.
Another important step for employers is to look at the treatment of other employees who have been disciplined in comparable circumstances. If an employer disciplines its employees inconsistently, they leave themselves open to challenge. Therefore, employers must be able to justify their disciplinary decisions as being within the band of reasonable responses and appropriate based on the specific circumstances.
Once an employer has arrived at a decision, the disciplinary sanction and the reasons for it must be confirmed to the employee in writing. The employee must also be offered the right to appeal.
Employers are entitled to put a time limit on the employee’s right to appeal. However, any time limit should give the employee a reasonable opportunity to collate their thoughts and prepare written grounds of appeal for the employer to consider.
Sometimes, employees submit their appeal after the employer’s time limit has expired. The employer should then take a balanced view on whether it would be reasonable to accept the appeal or not. This will usually depend on the specific circumstances. For example, if an employee has been unwell or otherwise unavailable to progress their appeal, then it might be appropriate for the employer to waive the deadline.
It’s important to always follow a fair disciplinary and appeal process, particularly where the outcome is the termination of an employee’s employment. Any failure to do so could give rise to an Employment Tribunal claim for unfair dismissal, which can be both costly and time consuming to defend. Therefore, to minimise the risks, employers should take specialist advice at an early stage.
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