Even in the happiest and most settled workforce, things sometimes go wrong. There can be misconduct issues that need to be nipped in the bud using an initial informal process or that are repeated or more serious therefore requiring a formal disciplinary procedure. Nobody likes tackling those situations as they often require difficult conversations, but if they don’t happen, you risk employees not knowing what’s expected of them and unhelpful precedents being set that make it much harder to address unacceptable behaviour from your staff.
It is important that any disciplinary issue is handled fairly and reasonable, by focusing on these principles you will have gone a good way to satisfying the law without getting too caught up on the technicalities. That said you should always be guided by the Acas Code of Practice on Disciplinary and Grievance Procedures, which sets out basic, practical guidance of what a fair procedure looks like.
If you end up dismissing someone, you need to be able to show that you have followed a fair procedure
If you lose a claim for unfair dismissal and a tribunal finds that your failure to follow a fair procedure, as guided by the ACAS Code of Practice, was unreasonable, your employee could benefit from an uplift to their compensation of up to 25%.
All employers should have a written disciplinary policy in place as this is a legal requirement. It does not have to be anything complex or onerous. However, it should set out transparent and fair rules and procedures for disciplinary decisions and appeals.
When having to address issues of misconduct it is important to remember the practicalities:
- Keep written records/notes of all steps taken, always remembering that these may need to be given to the employee at some point.
- Maintain confidentiality
- Act promptly
- Communicate decisions effectively, with reasons.
A common questions is “can I just deal with it informally”
Will a quiet word with an employee nip something in the bud before it escalates? An informal chat should only be used for minor issues and if it does not work, you need to investigate the allegations thoroughly. When dealing with a matter informally remember:
- the meeting should still be confidential and private;
- it should involve a discussion about what the problem is and how it has arisen and make clear what action is needed in future;
- keep it informal and keep a note; and
- send the note to the employee and warn that a formal process will follow if this issue is not resolved.
So what do you do if you cannot resolve it informally?
The first step is to carry out an investigation even in the clearest cut of cases. The purpose of the investigation is to establish the facts and any explanations for the conduct. The investigation does not have to be overly burdensome but it must be reasonable in all the circumstances. The circumstances will include the seriousness of the potential disciplinary outcome and the level of factual evidence available. The employer will need to investigate sufficiently to ensure that the allegations are clear, so that these can be put to the employee in sufficient detail to enable a meaningful response.
Once the investigation is complete the investigator should determine whether there is a case to answer. They are not commenting on guilt or sanction, only that there is sufficient evidence to warrant a disciplinary hearing.
The employee needs to be given adequate notice of the meeting. 48 hours’ notice is often bandied about and in a lot of circumstances will be reasonable but depending on the seriousness of the allegations and levels of evidence more notice might be considered reasonable.
When inviting the employee to the meeting they should be:
- be able to clearly identify the precise allegations against them;
- provided with copies of all the evidence to be relied upon;
- warned of the potential consequences e.g. dismissal if the allegation is one of gross misconduct; and
- advised of their right to be accompanied by a colleague or trade union representative.
The hearing should be heard by someone other than the investigating officer and be independent of the allegations. During the meeting the employee should be afforded the opportunity to put forward their case and respond fully to the allegations.
Following the hearing the chair of the meeting might decide that further investigation is required. If this is the case then any further evidence should be provided to the employee and they should be given the opportunity to respond to it at a further meeting.
What happens when a decision has been made?
Once a decision has been made this should be communicated to the employee. The key thing to remember is that the decision maker should have a genuine belief that the employee is guilty based on reasonable grounds/investigation. The decision also needs to be in the range of reasonable responses. If the decision is to issue a warning the letter should set out when the warning will expire and what conduct is expected of the employee.
The employee should be given the right of appeal and should be notified of this in the decision outcome letter. The appeal should be held by someone more senior to the chair of the disciplinary hearing and be someone independent of the process to date.
The practicalities of having three individuals who are sufficiently trusted to carry out the duties of investigator, disciplinary chair and appeal chair can cause difficulties for smaller organisations. The ACAS Code of Practice does give consideration to the resources of the employer, however, if dismissal is a likely outcome it might be wise to bring in external support to ensure that three separate individuals are dealing with each of the three stages. Our HR Consultancy team can assist you by coming onsite and carrying out any of the stages.
If an employee has less than two years’ service then they will not have the right to bring a claim for ordinary unfair dismissal, so a less formal process can often be followed. However, beware, an employee might have “day one” rights which they can use as the basis of a claim if they are dismissed with less than two years’ service. For example, grounds on which they believe a discrimination or whistle-blowing claim can be brought. It is therefore important that you take legal advice before taking any action.
If you would like to know more or hear the Head of our HRExpress team talk about the disciplinary process please watch her video here:
There are also a variety of other videos on our You Tube channel which might be useful in guiding you through the minefield of employment law and HR issues.
Hazel Sanders is a paralegal and based in the employment team in Exeter. If you would like to contact Hazel to discuss a disciplinary issue or any other employment law issue, please call 01392 210700 or email firstname.lastname@example.org.