Taking disciplinary action and considering mitigating factors

When an employee’s conduct falls below acceptable standards, an employer may need to take disciplinary action to address the issue or consider dismissal. Misconduct can range from fairly minor misconduct such as occasional lateness, or more serious misconduct such as violent altercations with another staff member. The disciplinary action an employer decides to take, should depend on all the circumstances including an employee’s length of service and the nature of the misconduct. 

Once an employee has two years’ service, they gain the right not to be unfairly dismissed. It is therefore fundamental that an employer demonstrate that any dismissal is reasonable and justified. This includes the employer following a fair procedure. The employer also has to take individual circumstances of a situation into account to decide if a dismissal was reasonable should this occur. This includes considering all mitigating factors.

A lot of employers fail to consider all such mitigating factors especially when dismissing an employee which could result in a successful claim for unfair dismissal. If there are mitigating factors an employers response to dismiss may not be reasonable… 

What are mitigating circumstances when considering dismissal?

Mitigating circumstances can include:-

• remorse;
• length of service;
• provocation;
• the employee’s prior disciplinary record;
• the background to the offence, including previous warnings or similar incidents by other people;
• heath and safety being risked; and
• whether the employee is off-duty. 

It’s good practice for employers to ask employees if they have anything to say in mitigation before making a final decision in a disciplinary process. 

For example, it could be unfair to dismiss an employee for fighting if other employees involved in similar incidents had received lesser sanctions, or if factors like provocation or self-defence were not considered. 

What about health or disability related issues?

If health or a disability contributes to the conduct, failing to investigate these issues before dismissal could make the dismissal unfair and lead to disability discrimination claims.

Get in touch

If you’re an employer considering disciplinary action, our highly experienced employment lawyers can help you stay compliant with employment laws and prevent costly claims. 

The contents of this article is a general guide only at the date of publication. It is not comprehensive, and it does not constitute legal advice. Specific legal advice should be sought in relation to the particular facts of a given situation.