Asking what percentage of claimants are successful is pointless to be honest because that is not what determines you prospects of success. Previous cases, which have no relation to your own circumstances are irrelevant in determining how your case will go. You need to concentrate on your own case, your own facts and your own circumstances, rather than look at what percentage of past claims, completely unrelated to yours, have done.
As far as the disciplinary process itself is concerned, alleged misconduct is a common reason for taking disciplinary action against an employee. It could be either due to a single serious act, or a series of less serious acts over a period of time.
In order to justify that disciplinary action on grounds of misconduct is fair, the law requires that the employer does the following:
- Conducts a reasonable investigation;
- Follows a fair disciplinary procedure; and
- Shows they had reasonable grounds to believe the employee was guilty
In addition, the employer is expected to follow the ACAS Code of Practice on Disciplinary and Grievance procedures, which can be incorporated into their own disciplinary policy. It sets out various steps along the process which the employer has to follow to ensure the process is fair.
The main requirements for a fair disciplinary procedure can be summarised as follows:
1. Investigation – the employer must conduct a reasonable investigation first. This could include interviewing the employee or other witnesses who may have relevant information. What is reasonable depends entirely on the circumstances and the nature and seriousness of the allegations. The more serious or complex these are, the more detailed the investigation needs to be. Conversely, simple matters will only require a simple investigation which can be completed in a day. The employer is not legally required to provide full details of the allegations prior to an investigatory meeting taking place.
2. Disciplinary hearing - if the investigation provides sufficient evidence of misconduct, the employee may be invited to attend a formal disciplinary hearing to answer these allegations. They must be given reasonable notice of the hearing, together with details of the allegations and any evidence to be used against them. They have the legal right to be accompanied at the hearing by a trade union representative or a workplace colleague.
3. Decision - following the disciplinary hearing and once the employer has had a chance to consider the employee’s response, they can make a decision on the outcome. If the employer holds a genuine belief that the employee was guilty, then they can go ahead and formally penalise them.
4. Penalty – this has to be a decision, which a reasonable employer would have taken in the circumstances. When deciding on the appropriate penalty, the employer should consider the nature and seriousness of the offence, any mitigating factors and the employee's length of service and disciplinary record. Other aspects, like expressing remorse and apologising and there being evidence the issues were innocent or unintentional should also help to a degree. Unless the offence was one of gross misconduct, ACAS recommends that the employee is issued with a written warning for a first offence.
In summary, the requirements of proof are not as stringent as in criminal law and an employer is not expected to prove beyond reasonable doubt that the alleged misconduct had definitely occurred. A decision on the balance of probabilities will be sufficient and disciplinary action will be fair if the employer can show that it had met the above criteria, namely conducting a reasonable investigation, following a fair procedure and holding a genuine belief that the employee was guilty. Finally, it must show that the penalty was one that a reasonable employer would have taken in the circumstances.
If there is evidence that the employer has not followed a fair procedure as outlined above, the outcome can be formally appealed with the employer. If the disciplinary results in dismissal then a claim for unfair dismissal can potentially be made in the Employment Tribunal. There are two main requirements to claim: the employee must have at least 2 years' continuous service with the employer and the claim must be made within 3 months of the official date of termination.