Disciplinary Proceedings – increasing employee protection

It is a well-trodden path in dismissal litigation for the disciplinary process adopted by the employer to be picked apart piece by piece, with varying degrees of success by the claimant lawyer. This job was arguably made easier following the Court of Appeal’s decision in Burn v Alder Hay, in which the Court opened up the possibility of implying a term into employment contracts that disciplinary processes should be conducted fairly. 

Whilst this might seem relatively innocuous on the face of it, it could have quite a significant impact on claims arising out of disciplinary proceedings. An obligation to act ‘fairly’ as a part of disciplinary proceedings independent from the current duty to ensure the trust and confidence between employer and employee is not seriously damaged or destroyed, would impose greater obligations on employers and open up a new avenue for claims. 

It’s now a question of ‘watch this space’ for further developments.  But it is very likely that this decision will give employees extra ammunition when presenting claims that involve a challenge to disciplinary proceedings.  Correspondingly extra vigilance in planning and implementing disciplinary processes would be recommended.