Unfortunately most employers at some point in time will need to address issues concerning a badly behaved or underperforming employee. This can, understandably, be a daunting task for many employers, especially as slip ups in process and procedure can lead to costly unfair dismissal claims.
It is therefore imperative that employers have adequate policies and procedures in place and these are followed to minimise the risk of potential claims.
This guide seeks to provide some basic steps for employers to consider when commencing a disciplinary procedure.
Read and get to grips with the ACAS Code on disciplinary and grievance procedures. Going back to basics is a good place to start and will remind you of some of the key features of a fair disciplinary procedure and the consequences of failing to follow the Code. Key points of the Code include:
- Employers should act consistently;
- The need for investigations to establish the facts of the case;
- Employees should be informed of the allegations against them and should be given the opportunity to respond;
- The right for employees to be accompanied at formal disciplinary meetings; and
- Employees should be allowed the right to appeal.
Disciplinary Policy and Procedure
Ideally policies and procedures should be up to scratch and reflect the requirements of the ACAS Code mentioned above. Investing the time to check the correct procedures are in place before any problems occur will save an employer a lot of hassle further down the line.
Employers should review their policies and procedures before taking any action against an employee to remind themselves of the steps to be taken, the types of behaviour they deem to be misconduct and gross misconduct, the available sanctions and who should conduct the investigation, disciplinary hearing and appeal.
Can it be resolved informally?
It may be that due to the nature of the misconduct, the issue can be resolved informally. This is often a better way of dealing with a minor issue rather than jumping straight into a formal disciplinary procedure. However, an employer should always inform an employee that a formal process could be followed if the problem continues.
Establish the Facts
If an informal discussion is not appropriate or the matter is not resolved, the formal disciplinary procedure should be followed.
The employee should be informed of the allegations against them and these should be investigated fully and promptly. This will often involve holding an investigatory meeting with the employee concerned and gathering witness evidence. Employees have no statutory right to be accompanied at an investigatory meeting.
In some circumstances, an employer may be able to suspend an employee on full pay pending an investigation, particularly if the misconduct is sufficiently serious. Employers should seek advice before suspending an employee to ensure they follow the correct steps and the employee has been informed of their rights in writing. The period of suspension should be as short as possible and the suspension decision should be kept under regular review. A decision to suspend an employee should not be taken lightly or be an automatic response and legal advice should be obtained.
Once an investigation has been conducted, an employer can decide whether there is a case to answer. If so, the employee will need to be informed in writing detailing the allegations, the time and date of the disciplinary hearing, the possible consequences of disciplinary action and their right to be accompanied. The evidence gathered during the investigation should also be provided to the employee in good time before the hearing.
At the hearing, the allegations and evidence should be explained to the employee. The employee should then be allowed to respond accordingly, ask questions and provide any evidence in support of their case.
Following the disciplinary hearing the employer should carefully consider all of the evidence before reaching a decision. Once a decision has been reached, this should be communicated to the employee promptly in writing and in line with the employer’s disciplinary procedure. It is advisable that employers take legal advice before deciding on a sanction and ensure that they are permitted to issue that sanction in accordance with their own policies and procedures. Most disciplinary procedures provide for a first written warning, a final written warning, dismissal with notice or summary dismissal but some provide for alternative sanctions such as demotion. The employee must also be informed of their right to appeal and their right to be accompanied to an appeal hearing.
Appeals should be heard without undue delay, and should be dealt with impartially, ideally by a more senior member of staff.
The above is just a brief outline of some the steps that an employer should take when commencing disciplinary proceedings but it is always advisable to seek legal advice.
If you would like any advice about the issues raised in this article or any other aspect of employment law, contact us on 029 2034 5511 or by email at firstname.lastname@example.org.