Employers of all sizes should have an established disciplinary procedure in order to regulate breaches of employee discipline. Ideally the Company disciplinary procedure should be incorporated in the Employee Handbook and referred to in the employee’s contract of employment.
The Advisory, Conciliation and Arbitration Service (ACAS) sets out the basic principles of fairness in its Code of Practice which employers should endeavour to follow to minimise the risk of Employment Tribunal claims.
In keeping with the principle of fairness employers should raise potential disciplinary matters promptly and make the necessary investigations to establish the facts of the concerning issue. In order to do this this may require holding an investigatory meeting with the employee or other staff involved or witnesses. Further, keeping a written record is essential for you to refer back to and allows you to identify exactly to the employee what the problem is in an organised manner should you have to take formal action.
Once the employer has established the facts they should then decide whether they wish to take informal or formal action. In many circumstances, for example, for a minor issue causing concern, an informal chat with the employee may be all that is necessary to resolve the matter.
On the other hand, some acts of an employee are so serious that the consequences of them can and should be dismissal even on the first offence of such an act. This is termed gross misconduct. Gross misconduct will vary according to your business but can include fraud, theft or violence.
Here is a brief outline of the steps employers should follow should you decide to take formal action:
– Informing the Employee
The employee should be notified of disciplinary action being taken against them in writing, containing sufficient information about the concerning conduct as well as any evidence compiled during the investigation process so that the employee may prepare an answer.
It is also important to advise the employee of the possible consequences of the disciplinary meeting as well as advising them of their right to be accompanied at the meeting.
– The Disciplinary Meeting
The meeting should be arranged promptly but still allowing the employee reasonable time to prepare their case. At the meeting the employer should explain what is of concern to the employer and go through any evidence of the concerning conduct so that the employee can answer the allegations against them. Should you wish to call witnesses to the meeting the employee should be advised of this in advance and should the employee want to call relevant and reasonable witnesses themselves then they should be allowed to do so.
It is important that the employee is given the chance to defend themselves by presenting evidence to you and asking questions if they wish to. It is also advisable that minutes of the meeting (and any future meeting with the employee) should be taken for future reference.
– Allow the Employee to be Accompanied
Employees have a statutory right to be accompanied to a disciplinary meeting should it result in a formal warning, other disciplinary action, or in the case of appeal hearings the confirmation of a warning or other disciplinary action.
The person accompanying the employee can be a fellow worker, trade union representative or a certified official employed by the trade union.
– Appropriate Action
After the meeting the employer should decide whether any disciplinary action should be taken against the employee and the employee should be informed accordingly in writing within a reasonable time. Where an employee’s misconduct is established or the employee is performing unsatisfactorily then the employer should issue a written warning. Failure to improve or further misconduct within a specified period could then result in a final written warning.
However, where the employee’s conduct was so sufficiently serious in the first instance it may not be appropriate to issue a first written warning and better to move directly to the final written warning. Such circumstances warranting this can include employee conduct which has had a serious and damaging effect on your business.
– Written Warning
Both the first and final written warnings should set out the conduct warranting discipline and the period within which a change in performance/behaviour (or lack of misconduct) is required. In the spirit of fairness the employee should be made aware of the period within which the warning will remain current and effectively expire. Further, the employee should also be informed of the consequences of failure to improve conduct within the timescale set following the final warning being issued. For example, the most severe of consequences, the employee may be dismissed or less severe consequences such as demotion or disqualification of discretionary benefits.
– Decision to Dismiss
The decision to dismiss should be made by only those with authority to do so, for example a manager. The employee should be informed as soon as possible with the reasons for dismissal, the date of termination of the employment contract, their right to their personal period of notice and their right to appeal the decision of the disciplinary procedure.
– Right to Appeal
Employees have the right to appeal a decision against them if they feel it is unreasonable or unjust. The employee should let you know the grounds of their appeal against your decision in writing and the appeal should be heard within a reasonable time at a mutually agreed place.
Employers should deal with the appeal impartially and if possible it should be dealt with by another member of staff who was not initially involved in the case. Employers should be aware of employees’ statutory right to be accompanied to their appeal hearing. The result of the appeal hearing should be indicated as soon as possible to the employee, either confirming the previous decision and the reasons for it or accepting their appeal and the next steps involved.
At Oracle Law we can provide advice on how to handle employee discipline and procedures that should be followed in this often difficult process. We can provide you with guidance to ensure the rights of the employee are not contravened throughout the disciplinary process as this can lead to further complications and even serious allegations being brought against you in an Employment Tribunal claim, for example for Unfair Dismissal.
We can also provide you with bespoke employee handbooks and draft contracts of employmentcontaining your disciplinary process making clear to all involved the steps that will be followed in such circumstances. Guidelines of expected behaviour contained in employee contracts or handbooks are essential for employers to include because they outline what you regard as misconduct in terms of expected behaviour and performance.
The basic rules of behaviour expected will vary from organisation to organisation but should generally always include:
• health and safety
• use of telephones, email, internet and other communications, and
• examples of acts considered to be gross misconduct (again varying from organisation to organisation but including in general, theft, fraud, physical violence, gross negligence or serious insubordination).
The benefits of this are transparency and preventing an employee claiming they did not know certain behaviour was deemed to be misconduct actionable by a disciplinary when presented with evidence of such behaviour. Further, there are several things that can be done to pre-empt or avoid serious disciplinary issues from arising which we can discuss with you and advise you on.
At Oracle Law we are more than happy to advise you on employee discipline or any other employment related issue.