Demoted in rank
The police inspector has been demoted to the rank of sergeant following a police misconduct hearing (akin to a disciplinary hearing) at which he was found to have committed gross misconduct in relation to the sale of the trousers for £4 on Vinted, a second-hand selling app. He had listed the trousers on Vinted as police issue, and he was reported to Hertfordshire Constabulary by a member of the public. He was demoted because the misconduct hearing decided that dismissal wasn’t proportionate but that the inspector's management role was an aggravating factor which meant a demotion was a proportionate sanction.
Legality of demotion as a result of misconduct
The police have statutory conduct regulations in place and the disciplinary sanctions that can be imposed for misconduct are governed by those. For other employers, you need to consider:
- The statutory Acas Code of Practice on Disciplinary and Grievance Procedures. This briefly mentions that further misconduct following a final written warning may result in dismissal “or some other contractual penalty such as demotion or loss of seniority”.
- The non-statutory Acas guide to discipline and grievances at work, which supports the Code of Practice. This states that, as an alternative to dismissal, the employment contract “may allow for a different disciplinary penalty instead” and demotion is specifically mentioned.
- The terms of the employee’s employment contract/ disciplinary rules where this is contractual. You can only apply demotion as an alternative to dismissal if this is explicitly provided for or the employee expressly consents to the demotion. This is still the case even if the employee has committed gross misconduct and they would otherwise be summarily dismissed.
Appropriate use
Demotion should be reserved for exceptional cases. In the vast majority of cases, you should follow the standard warnings procedure for general misconduct which will ultimately lead to the employee’s dismissal with notice, or in a gross misconduct case you should move to summary dismissal. However, you could consider demotion as an alternative to dismissal for misconduct or gross misconduct in a rare case where it would be reasonable to do so, for example, there are mitigating factors such as they have a long and/or previously unblemished service record and you believe the employee deserves a chance to turn their conduct around. It could also run concurrently with a final written warning, even if that means issuing a second final written warning.
Tip. Check your disciplinary procedure to see if it provides for demotion as a disciplinary sanction and that you have a contractual right to do so. If you intend to reduce pay as part of the demotion, you’d also need to ensure pay reduction is provided for as a contractual disciplinary sanction. Alternatively, seek the employee’s written consent to demotion (and pay reduction) once the disciplinary hearing has been held. Make sure you discuss the demotion with the employee so they fully understand the ramifications and make clear what the alternatives may be if the employee does not agree, for example where dismissal may be the only other appropriate sanction in the circumstances. Remember, such consultation is necessary where there is no contractual right to demote and is good practice even where there is.
Tip. Always confirm demotion in writing, setting out the employee’s new terms, job description and to whom they will now be reporting to if this has changed. As with all disciplinary sanctions, and the employee should still be given a right of appeal.
Tip. To avoid being in breach of the implied term of mutual trust and confidence, ensure demotion is only for a temporary, fixed period just as a warning would be, i.e. it isn’t a permanent sanction.
You can only impose demotion as an alternative disciplinary sanction to dismissal in misconduct or gross misconduct cases if either you have the express contractual right to do so or the employee consents to it. Only ever consider using demotion in very exceptional cases and as a temporary sanction. Truth be told, it’s not an easy solution as you’re likely to end up with an unhappy employee in the workplace. How this is managed and how the demotion is communicated to the employee’s colleagues (both old and new) and the rest of the workplace is something to be considered carefully.
For more practical advice like this, plus ready-to-use documents, access to a helpline, special reports, news, key data and more, request a demo of Employment Essentials, our unique, all-in-one online solution for busy HR professionals.
Claire Birkinshaw is an employment lawyer
