Disciplinary Invite letters and stated penalties

[ritemaster]

You have committed an act of misconduct which your employer states is 'serious misconduct'. You have never been in trouble before and this is your first act of misconduct.

Your employers disciplinary procedures state that for a first act of 'serious misconduct' the maximum penalty is a final written warning.

When you get the invite letter to the disciplinary it states the penalties you could receive for this misconduct; one of which it states is dismissal.

Is your employer breaking any regulation by stating a penalty which is greater than the penalty stated in their own disciplinary procedures?

It may be something and nothing, but I have a whole list of procedural breaches committed by my employer and one more added to the list wont hurt.

[teaboy2]

Re: Disciplinary Invite letters and stated penalties

It would depend on the seriousness of the serious act of misconduct! If it was criminal, then yes they can dismiss the employee!

[ritemaster]

Re: Disciplinary Invite letters and stated penalties

A criminal act or conduct of an extremely serious nature would be gross misconduct and an instant dismissal. The invite letter would have stated gross misconduct and correctly stated dismissal as the penalty.

But the invite letter I received stated the conduct was serious misconduct. As it was a first occasion, their procedures state the penalty is a final written warning. The invite letter only stated dismissal as the penalty.

The penalty stated was greater than what the company procedures allowed.

Would that be a procedural defect?

[teaboy2]

Re: Disciplinary Invite letters and stated penalties

Well it depends on what the act of serious misconduct was, does it in part (if a number of acts) or as a whole fall under what is deemed gross misconduct at all?

Yes there is a difference between what amounts to serious misconduct and what amounts to gross misconduct, but all the employer would need is to prove they had grounds for reasonable belief that it amounted to gross misconduct, in part or as a whole!

Graham v The Secretary of State for Work and Pensions (Jobcentre Plus) - In this case Graham was dismissed for gross misconduct, the ET and EAT found in favour of the secretary of state, however the court of appeal found that their was a difference between serious misconduct and gross misconduct, and that whilst Court of Appeal found the answer to be yes to points 1 and 2 below, they found the answer to be no in regards to point 3:

1. Did the employer carry out a reasonable investigation?
2. Did the employer believe that the employee was guilty of the misconduct complained of?
3. Did the employer have reasonable grounds for the belief?

This meant the court of appeal found that Graham had not committed gross misconduct but merely committed serious misconduct in line with what the employer’s disciplinary process. Therefore the court found the summary dismissal was outside the band of what amounted reasonable responses in the circumstances, and was therefore unfair. Though the court also took in to account Grahams long service and exemplary record!