Despite every effort, even the best-run businesses may encounter disciplinary problems with employees from time to time.
Although it is always best to focus on effective management practice and preventative measures, having clear and fair disciplinary procedures is a good first step in avoiding difficult employment tribunals.
Here’s what you need to consider, the procedures you need to put in place and the steps to follow when it comes to disciplinary matters;
The method an employer uses for a disciplining employees is not generally governed by legislation; there is no longer any law which involves setting out procedural requirements that an employer must follow.
However, the process is covered by a statutory Code of Practice which sets out the steps that an Employment Tribunal would like to see in a disciplinary procedure in order to give the employee adequate opportunity to represent themselves during the process.
This Code of Practice will be referred to by a Tribunal during an unfair dismissal claim and therefore creates an established process for employers to follow.
Informal disciplinary action
When an employer encounters an issue with an employee which causes them some concern, he first has the option to deal with it in an informal manner.
Usually, when it is the first time that the issue has occurred, a quick word in the employee’s ear is enough to set them back on track. The discussion with the employee should be followed up by a letter, to be kept on their personnel file, confirming that they have spoken to about the issue and that it should not happen again.
This is not a formal warning; it is simply an acknowledgment of the issue and lets the employee know that their conduct needs to improve.
It is common that this informal stage is included in an employer’s disciplinary procedure. The absence of it in written procedures does not mean that it cannot be done. However, all other areas of the formal disciplinary process should adhere to the employer’s written procedure.
Where an informal discussion does not rectify the situation, or where the employer feels that formal action is required, then certain procedural steps should be followed.
First, the employer must hold a reasonable belief that there is a case for the employee to answer. In order to do this, it is vital that an employer conducts an investigation into the alleged wrongdoing.
The nature and length of the investigation clearly corresponds to the seriousness and intricacy of the allegations. Some investigations may take a short time, other may take a few days. An investigatory meeting with the employee in question, in addition to other employees who may be able to shed some light on what appears to have happened, may be part of the investigation process.
As clear a picture as possible should be obtained in order for the employer to understand the details. Some investigations may reveal no misconduct, in which case the process should go no further.
Inform employee of allegations
If an investigation uncovers potential misconduct and a disciplinary procedure is to be instigated, then the employee should be made aware of the allegations and invited to a disciplinary hearing. It is important for an employer to set out, in detail, the nature of the allegations and this may include dates and times of the alleged misconduct.
Employers must be sure that they include all allegations in this letter because it will not be considered reasonable to put allegations to an employee during a hearing, or to discipline for them, that they have not already been notified of. This is because the employee will not have been given the opportunity to prepare their defence to the allegation and will be caught on the hop.
It is also important to make sure the employee is given a reasonable amount of notice of the hearing.
Holding a disciplinary hearing
The disciplinary hearing should be held and the allegations explored, allowing the employee to offer any explanation they have.
The employee is legally permitted to have a companion at the hearing; this can be either a colleague or a trade union official. The role of the companion is defined in law so that the onus in on the employee themselves to discuss the issues with you rather than have someone speak for them.
Detailed minutes should be taken of the meeting because they may well need to be used further down the line.
Evidence can be used at the hearing, including any witness statements that have been collected, but again, these should have been given to the employee a sufficient amount of time before the hearing, preferably with the letter inviting them to the hearing.
In order for the employee to understand the gravity of any allegations made against them and for them to be able to defend such allegations fairly, they should be made well aware of the possible outcomes of the disciplinary procedure in terms of the level of sanction that could be applied.
Decide on outcome and disciplinary sanction
After considering the evidence and any explanation to the allegations put by the employee at the hearing, the employer should make a decision on whether the allegations are substantiated. Whether the employer decides that a disciplinary sanction is or is not warranted, the outcome should be conveyed to the employee without undue delay.
Where a sanction is applied, the employee should be given the right appeal it and the process for an appeal e.g. who to appeal to and the timescales involved, confirmed.
The sanction to be applied should be appropriate to the severity of the allegations, if substantiated. In their disciplinary procedures, employers generally set out different examples of misconduct and categorise them with others that are considered a similar level of seriousness – these are generally;
- Unsatisfactory conduct/misconduct,
- Serious misconduct and
- Gross misconduct’.
Sanctions generally include a;
- Verbal warning,
- Written warning,
- Final written warning, followed by,
There may also be scope to give a first and final written warning.
It is important that the employer’s decision and the action to be taken are reasonable in the circumstances. It is most likely that an employee should receive a series or warnings before a final written warning and dismissal are appropriate.
Minor instances of misconduct must almost certainly follow every stage of the warning escalation process and, generally, only live warnings can be built upon.
You should, therefore, consider the following points when determining the disciplinary sanction;
- The severity of the offence
- Any mitigation offered by the employee regarding the circumstances surrounding the misconduct
- The employee’s previous disciplinary record and
- Consistency with sanctions applied to previous occurrences of the same misconduct
It is not only the reason for the dismissal that an employment tribunal will consider when deciding on the fairness of a dismissal; the procedural steps are also to be considered when determining the overall reasonableness of the employer’s actions.
With this kind of procedure in place you should feel confident that if issues arise, your business is equipped to deal with them. If you feel unsure about any part of the process or requirement, seek advice from ACAS, or an HR adviser.
This guide has been written exclusively for ByteStart by Peter Done, Managing Director of Peninsula Business Services – the UK’s leading specialist Employment Law, HR and Health & Safety service.