How to manage a disciplinary procedure effectively is really important in the field of HR and employment law – and as we start World Cup 2018, I wonder if on-field antics from the world’s footballers might pose any similarities with how businesses should handle misconduct in the workplace?
Over the course of the World Cup in 2014, 187 yellow cards were issued, at a rate of nearly three per match. Ten red cards were issued, at a much lower rate of only 0.16 per match. Yellow and red cards are used to penalise fouls and misconduct. A foul is an unfair act by a player, deemed by the referee to contravene the game’s laws, that interferes with the active play of the game. Misconduct is any conduct by a player that is deemed by the referee to warrant a disciplinary sanction and may include acts which are also fouls. A foul can only be committed when the ball is in play whereas misconduct can cover acts at any time, including before and after the game.
Judge, jury and executioner
In football, the referee determines whether or not a card is warranted (though at this Word Cup, for the first time, the Video Assistant Referee can intervene in a straight red card where there has been a clear and obvious error and in cases of ‘mistaken identity’). We are all very used to offending players and their teams haranguing referees. By necessity, in-game sanctions are dealt with quickly and not necessarily with the benefit of time to consider all the circumstances. By contrast, in a business context:
- Although there have been decisions upholding a dismissal where no (or very little) investigation was carried out, the circumstances of those cases tend to be very fact specific and even in the most apparently clear-cut case of misconduct, allegations should, generally speaking, be thoroughly investigated.
- It is always sensible, if possible, for different managers to conduct the separate stages of a disciplinary procedure, specifically the investigation of the alleged offence, the disciplinary hearing itself and any subsequent appeal.
- Information about disciplinary matters should be kept strictly limited to those involved and there should be no discussion of such information or potential outcomes outside the confines of the disciplinary process.
Two strikes and you’re off
The football card system operates on a staged basis. The referee might have a quiet word with an offending player (or his captain) before moving to issue a yellow card. Two yellow cards will be immediately followed by a red and a particularly serious offence can be penalised with a straight red.
Similarly, it is always sensible for businesses to follow a rising progression of warnings. Some businesses will apply a formal verbal warning in the first instance but even without that, it can be sensible to try and resolve a first misconduct issue informally without recourse to a formal disciplinary process. If a disciplinary sanction is deemed appropriate, businesses should look to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures, which recommends a first written warning, a final written warning and dismissal. It will generally only be fair to omit a stage or stages in particularly serious instances of misconduct.
It’s all about the game
A referee can take disciplinary sanctions from the moment of entering the field of play until leaving it after the final whistle (though his authority extends to misconduct off the field of play). However, many league and cup competitions will have additional rules to apply post-match penalties in certain circumstances. For the World Cup, a player receiving a red card is automatically suspended for the next match, as is a player who receives two yellow cards in two different matches.
In the employment context, disciplinary warnings should always be issued with an accompanying time frame, for example, a first written warning might be ‘live’ for six months and a final warning for 12 months. If a further act of misconduct is committed within that period, a business will generally be entitled to take the existing sanction into account when deciding on the outcome of the later disciplinary process. By contrast with football, however, a business may, depending on the circumstances, also be entitled to take disciplinary action on the basis of misconduct outside of work. We have, in particular, seen a lot of recent cases on social media and misconduct such as drug abuse could also be relevant, depending on an employee’s role/position. The scope of a business disciplinary procedure certainly can be wider than simply events happening in the workplace but it is likely that a business would still need to show a link with their interests and/or an individual’s role to justify disciplinary action.
The Stephens Scown employment team works in partnership with organisations to improve their HR practices and advise on employment issues. To discuss this or any other HR issue call 01392 210700 or firstname.lastname@example.org.