The letter sent to an employee following a disciplinary process is often the most important document that an employer will rely upon in defending any subsequent employment tribunal claim. We suggest 10 top tips for drafting disciplinary outcome letters.
10 top tips
An outcome letter is often viewed by an Employment Judge as the key document summarising the employer's mindset before the various versions of events have been developed with the input of lawyers at a Tribunal hearing. The letter must therefore contain a clear summary of the employer's rationale for the decision reached. As such employers should consider including the following points.
1. Cover off the background information
It is advisable to clearly set out the information surrounding the circumstances of the disciplinary meeting, when the meeting took place, who was involved and the steps taken during the meeting to consider the employee's version of events. If the meeting is adjourned and reconvened this should also be documented in the outcome letter as evidence that a reasonable process has been followed.
2. Getting the allegations correct
Employers fall into error when referring in an outcome letter to allegations which do not match identically those allegations for which the employee was invited to the disciplinary meeting. Accordingly, the allegations contained within the outcome letter must match the allegations in the invite letter and also correspond to the wording used in the disciplinary or other relevant policy being relied upon.
3. The employee's explanation
Outcome letters are often very brief and fail to fully deal with the explanation put forward by the employee. It is advisable to document the employee's version of events in the letter and to then comment upon whether or not that version of events is credible and the basis for this conclusion. This provides the disciplinary officer with a clear record of their thought process should the matter proceed to an Employment Tribunal some months later.
4. Multiple allegations
In the event that the disciplinary has involved multiple allegations it is advisable to ensure that each allegation is dealt with separately and that the letter details the explanations put forward from the employee and the evidence available in connection with each allegation.
5. Give a firm decision
The letter should set out clearly whether or not the allegation is proven after taking into account the explanation from the employee. In the case of multiple allegations each allegation should be dealt with so as to give a firm response as to whether or not the allegation is proven.
In the event that the allegations are proven against the employee the disciplinary officer must then decide on the appropriate sanction. It is at this point that the letter should detail the mitigation put forward by the employee such as their length of service or previous unblemished disciplinary record and any other factors taken into account by the disciplinary officer. The letter should acknowledge these particular points and give firm responses to whether or not these impact upon the sanction that is to be given.
When detailing the sanction the outcome letter should be clear as to the sanction which has been given and the reasons for that sanction. In the event of a gross misconduct dismissal this should clearly state the reasons why immediate dismissal is appropriate in the circumstances and would normally involve a reiteration of the seriousness of the allegation. Where a sanction is being reduced due to mitigating circumstances this should be clearly documented so as to evidence the reason for differential treatment and to avoid setting a precedent for future cases involving the same or similar misconduct.
8. Consequences of further misconduct
In circumstances where a warning is given to an employee it is advisable to state that any further misconduct (of whatever nature) may lead to further disciplinary action and possibly dismissal. This wide scope will allow the employer to 'tot up' further misconduct warnings whilst the warning remains live. The warning should also state clearly how long it is to remain live in accordance with the time limits set out in the disciplinary policy.
9. The right of appeal
When any disciplinary sanction has been given the employee must be given the right of appeal. Accordingly, the conclusion of the letter should detail the arrangements for lodging an appeal, the deadline for lodging that appeal and to whom the appeal letter should be sent.
10. Finalising the disciplinary notes
Employees proceeding with an Employment Tribunal claim often seek to argue that the notes of the disciplinary meeting were not an accurate reflection of the discussions that took place. Accordingly, if not done already during the process, it is advisable with the outcome letter to send the notes of the disciplinary meeting and to invite the employee to comment on the notes if they do not believe that they are accurate.
By following the above tips employers should find themselves in a better position to defend a claim at Tribunal or to progress to the next stage of the disciplinary process if a warning rather than dismissal is the appropriate sanction in the circumstances.