In his book, “Influence: The Psychology of Persuasion”, Dr Robert Cialdini tells the story of a nurse who got written instructions from a doctor to treat a person who was complaining of a sore ear.
Administer medicine in R ear.
The tale continues with the nurse apparently misreading the last two “words” of that direction. As a result, we are told, the nurse put the drops in the patient’s anus.
While it’s surprising that neither nurse nor patient seems to have questioned how this procedure would help the patient’s earache, the point of the story is that we often obey apparent instructions from authority figures (here, the doctor), without thinking. Authority overrides our desire to make our own independent analysis.
Humans tend to use predictable shortcuts to deal with certain decision-making situations.
This is necessary and appropriate in many circumstances in order to cope with our fast-paced lives. If we considered in detail every one of the decisions we have to make, our daily schedules would grind to a halt.
On the down side, however, advertisers and salespeople, for example, often take advantage of these pre-programmed responses.
We need to keep our defences up and guard against the risk of inappropriate automatic responses, when a more considered approach is required.
Treating particular outcomes as “automatic” can also be risky in the context of a disciplinary procedure at work. From the point of view of the decision-maker, it is important to remember that it’s always necessary to consider the particular facts of the case rather than treating it as something to be decided automatically.
There are dangers to employers if they don’t apply proper thought processes when deciding the outcome of a disciplinary procedure.
The Scottish case of Spoor -v- Arnold Clark is an illustration of this.
The claimant had worked for the employer for about 42 years, with a clean disciplinary record. Arnold Clark has about 10,000 employees, including 15 HR staff. The employee was responsible for guidance to apprentices working at the company. He had argument with an apprentice, during which he momentarily lost his temper, making a grab for the apprentice at neck level.
The claimant quickly realised his behaviour had been out of line.
By the next day, he had apologised directly to the apprentice.
The on-site manager took the view that it was a momentary lapse by the claimant which did not merit any formal disciplinary action. All he did was send a letter to the claimant – expressing his concern at the incident – and report it to his HR Department (as he required to do) as a minor “handbags” incident.
Unfortunately for the claimant, HR took the opposite view to his manager.
They convened a disciplinary hearing.
The outcome of that hearing – and the subsequent appeal hearing – was that the claimant was guilty of gross misconduct. He was dismissed and subsequently made a claim to the Employment Tribunal for unfair dismissal.
In reaching the decision to dismiss, did the employer have to take account of the claimant’s length of service and previous exemplary record?
The employer argued that it had a “zero tolerance” attitude to physical violence in the workplace, so the fact of the assault was all it needed to be able to dismiss the claimant fairly.
The Employment Tribunal was not impressed with this argument. Though they found that the claimant had contributed 50% to his dismissal (and his compensation was therefore reduced by 50%), it was an unfair dismissal.
Though the employer appealed against the finding of unfair dismissal, nevertheless, the Employment Appeal Tribunal upheld the decision of unfair dismissal subject to the 50% deduction.
They said there was no clear evidence that the employer actually had a zero tolerance “policy” to violence, as the employer claimed. The employer’s disciplinary procedures stated that gross misconduct would normally result in dismissal; so, there was no mention of automatic dismissal for gross misconduct.
This meant that the employer had been wrong to ignore the employee’s previous good character and length of service in reaching its disciplinary decision.
One consideration might have been that, if the employee had indeed gone 42 years before blemishing his record, how likely was it that he would re-offend? Presumably, it was unlikely – and, if there was little likelihood of any further problems, that was a factor which the employer should have taken into account in the employee’s favour in deciding on any disciplinary sanction to apply.
- the employee had immediately realised his mistake and apologised to the apprentice; and
- his manager had not viewed the employee’s conduct as giving rise to any lasting concern.
The case illustrates the importance of treating each disciplinary situation on its own facts.
Consider all relevant factors before reaching a decision. Do not be tempted – as the employer was here – to take a mechanistic approach.
The result was that the employer appeared to jump unreasonably to the conclusion that dismissal was the appropriate outcome.
The hospital example (of adopting the wrong procedure in administering medication and risking harm to the patient) parallels the situation for an employer here. If you don’t follow the right procedure in determining the outcome of a disciplinary hearing, you’re in danger of damaging your own interests by giving your employee the right to claim against you for unfair dismissal.
How we can help
We hope you have found this article about disciplinary hearings at work – and why it’s necessary to consider all relevant facts before reaching a decision – to be useful.
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This article was originally published on the Moray Employment Law website in July 2017.