Disciplinary policies

From time to time, it is likely that issues or difficulties will arise in the workplace which will need to be dealt with appropriately and in a timely manner.

These types of issue could range from an employee acting in a way which breaches the organisation’s rules, an employee who is not performing to the standards required of them or even a complaint about an incident occurring inside or outside of the workplace.

Employers will want to be able to effectively deal with these issues however they will need to ensure that in doing so they handle such matters fairly.

Disciplinary procedures in the workplace

We are experienced and able to assist your organisation with all aspects of disciplinary related matters. We can help by:

• Drafting disciplinary and capability policies which reflect your organisation’s requirements
• Advising on conduct or performance issues and options on how to deal with these effectively
• Assisting and advising you on both informal and formal disciplinary procedures and how to minimise against any risks to the organisation
• Advising you on complex issues which may arise during the disciplinary process such as multiple grievances, complaints about discrimination or sickness absence during the disciplinary process
• Drafting necessary letters, scripts for meetings (e.g. investigation meeting questions, disciplinary hearing points and appeal meeting points) and guiding you through the process
• Providing training to your organisation on dealing with disciplinary and performance issues including how to carry out a disciplinary investigation and conduct a disciplinary hearing
• Defending against claims for unfair and constructive dismissal as a result of disciplinary/performance issues

Disciplinary policy

A good starting point for an employer will be to have non-contractual policies and procedures in place which demonstrate how disciplinary and performance issues will be dealt with. By making such policies non-contractual this gives employers the ability to change content making it easier to update them from time to time. It also ensures that a failure to follow the policy does not amount to an actionable breach of contract.

ACAS Code

The ACAS Code of Practice on disciplinary and grievance procedures (the Code) sets down the minimum requirements for both disciplinary and grievance processes. Employers should ensure, as an absolute minimum, their own disciplinary procedures reflect the provisions of the Code.

Whilst failure to follow any part of the Code does not make an employer liable to proceedings, if an Employment Tribunal claim is brought by an employee, the Tribunal must take the Code into account when considering whether an employer has acted reasonably or not. Additionally, if an employee is successful with their claim then the Tribunal can adjust the amount of the award by up to 25% if the employer has failed to comply with the Code. It can also reduce any award by up to 25% where the employee has unreasonably failed to follow the Code.

Disciplinary Process

Disciplinary procedures are often used to address any conduct or capability matters. If the matter is fairly minor then it may be possible to deal with it in an informal way e.g. speaking to the employee about the issue to give them a heads up that their conduct is not acceptable or let them know their performance has slipped and will need to be improved. Sometimes this can be an effective and quick way to resolve the issue.

However, there may be circumstances where misconduct or performance issues are too serious to be dealt with by informal means or perhaps an informal approach has not previously worked. In those situations a formal disciplinary procedure may need to be commenced.

A fair disciplinary procedure will normally consist of the following:

• A fair and reasonable investigation will need to be carried out by the employer to establish facts. Where an employee’s job is on the line then an employer will be expected to carry out a more thorough investigation into the allegations. It may be that once the investigation has been completed that the employer considers there are no misconduct or capability issues to take the matter further.
• If, further to the investigation, it is considered that there is a case to answer, the employee should be notified accordingly and the matter should proceed to a formal disciplinary hearing. The notice should include details of the allegations against the employee, the possible consequences facing the employee (e.g. warning, final warning, dismissal, demotion, etc), any evidence gathered during the investigation relating to the allegations and details for the disciplinary hearing. The employee should be advised of their right to bring a companion to the disciplinary hearing (an employee has the right to bring a trade union representative or a colleague although in some circumstances you may allow the employee to bring a family member or friend e.g. if the employee has a disability).
• The disciplinary hearing should be held without unreasonable delay although the employee will need to be given sufficient time to prepare for the hearing. The hearing should be chaired by a manager who has not previously been involved with the matter so as to avoid any complaints from the employee about bias. It is recommended that the chairperson for the disciplinary hearing has had appropriate training or has relevant experience to ensure they are able to deal with the matter.
• If the employee is absent or off sick then the employer should pause the process until the employee has returned to work. If the employee is off sick for a lengthy amount of time or they say they are not able to attend the hearing then the employer should explore other options with the employee such as holding the meeting remotely or away from the company’s premises. It may become necessary to obtain a medial opinion (with the employee’s consent) to see whether an employee is fit enough to attend the hearing. In some situations where an employee refuses to attend for no good reason it may be possible to hold the hearing without the employee although there are risks associated with this approach and other options should be explored first.
• At the hearing, the employee should be given the opportunity to ask questions and present their version of events and produce any evidence they have in support of this. The purpose of the hearing should be to establish facts rather than catch the employee out. It may transpire as a result of the hearing that further investigation is required to be carried out before reaching an outcome.
• It will normally be good practice for an employer to adjourn a disciplinary hearing so as to properly consider its decision in light of discussions at the hearing and any evidence submitted by the employee. Where an employer delivers an outcome immediately this may raise concerns that the employer had already made its mind up. The employer should decide on the outcome taking into account; the findings from the investigation and meetings; what is fair and reasonable and what the company has done in similar cases it has had before. Where the outcome is not dismissal, it is recommended that the employer gives the employee specific goals or objectives and timeframes for improvement.
• An employer should inform the employee as soon as possible in writing of the outcome. If the employee’s conduct or performance does not improve then the employer should repeat the process until improvements are made or until dismissal is the only fair and reasonable option. If the employer decides that it will not take any action as a result of the process it will then need to consider how best to manage the situation going forward to maintain a good relationships with the employee and any other staff who may have been involved in the process.
• The employee should be offered a right of appeal against the outcome of any disciplinary action taken against them. This is to enable the employee to raise concerns where they consider the outcome is too severe or if they consider the disciplinary procedure was wrong or unfair in any way.

Less than 2 years’ service

Where an employee has less than 2 years’ service, they lack protection from unfair dismissal. In theory this means that an employer might choose to deal with the matter using a less than rigorous approach or depart from their disciplinary policy. However, where an employer considers doing this, care still needs to be taken in those circumstances, as an employee may be able to bring other claims where a fair process has not been adopted and has resulted in a disciplinary sanction or dismissal.

Gross misconduct issues

Where the situation involves an allegation of ‘gross misconduct’ this might cause an employer to be tempted to dismiss an employee on the spot. However, it is generally not recommended that an employer does this without having first carried out a full investigation and holding a disciplinary hearing in respect of the matter (see further above).

Depending on what has happened and any protections the employee may have under employment law it might be appropriate for an employer to consider negotiating or agreeing an exit for the employee concerned. Normally this is done via a settlement agreement which gives the employer the comfort that it can terminate the employment without repercussions and gives the employee the ability to leave without a dismissal decision on their personnel record.

Suspension

Sometimes it may be appropriate to suspend an employee on full pay where the employee is facing serious allegations of misconduct or gross misconduct. Ideally suspension should be used as a last resort or where it is not practicable to have the employee in the workplace where they pose a risk to the investigation process.

In any event, any period of suspension should be brief and kept under review by the employer. It should also be made clear that the suspension is not indicative of or constitutes disciplinary action.

Raising a grievance during a disciplinary process

It is not unusual for an employee who is facing a disciplinary process to submit a grievance. This can cause problems for employers when deciding how best to proceed. If an employee is dismissed whilst their grievance is ongoing then they may try and argue that their dismissal is unfair.

An employer may consider suspending the disciplinary process so as to deal with the complaint which might be appropriate where the grievance suggests:

• there is a conflict of interest relating to the disciplinary chair
• alleged bias in the conduct of the disciplinary hearing
• allegations of discrimination
• management has been selective with the evidence it has provided to the disciplinary chair

Sometimes a grievance may be received after a disciplinary outcome has been given meaning it might actually be an appeal against the outcome. As a result, it might be possible (in some but not all cases) to deal with the matter as part of the appeal process.