Is the disciplinary procedure required?
A disciplinary procedure is a formal way for an employer to deal with an employee’s unacceptable or improper behavior (‘misconduct’)
It can also be used to address an employee’s performance (‘capability’). However, in practice, it is usually best to deal with this under a separate capability procedure which is based on support, training and encouragement to improve.
The employer should consider whether the issue could be resolved informally before commencing a formal disciplinary procedure, this might be by talking to the staff involved.
What is misconduct?
Misconduct is when an employee’s behavior breaks workplace rules
Examples might include bullying, harassment, refusing to do work, and being absent without permission.
Some acts count as ‘gross misconduct’ because they are very serious. Examples of gross misconduct could include physical violence, fraud, theft, gross negligence.
An employer may also have its own examples of misconduct / gross misconduct which are often included in employment contracts and/or written disciplinary procedures.
Why does an employer need to follow a ‘fair procedure’?
The ACAS Code of Practice on disciplinary and grievance procedures is the minimum that a workplace must follow
An employer may have its own policy with some differences to better suit that workplace
The ACAS Code is not the law, however if a case reaches the employment tribunal, judges will take into consideration whether the employer has followed the ACAS Code, and this is likely to influence their decision as to whether disciplinary action was procedurally fair and can impact upon the level of compensation awarded.
Notifying the employee
If an employer needs to start a disciplinary procedure, it must tell the employee right away.
This should be done in writing and should include sufficient information about the alleged misconduct or poor performance and the possible consequences (e.g. dismissal, written warning).
The employee should have this information in time to allow them to prepare for a disciplinary hearing.
If the employee raises a grievance
The employer can pause the disciplinary and deal with the grievance first. The employer could also deal with both at the same time if the grievance and disciplinary matters are related.
If the employee wants to resign
If the employee has over 2 years’ service with the employer, they might resign and attempt to bring a claim for constructive dismissal. The employer should try to encourage the employee to complete the disciplinary procedure before making this decision.
Should the employee be suspended during the disciplinary?
It is normally best to avoid suspending an employee under a disciplinary investigation wherever possible.
It may be better to make other arrangements such as the employee working elsewhere in the business temporarily. However, if suspension is necessary, the employer should explain the reason for the suspension, advise this is not a presumption of guilt, pay the employee in full during the suspension, keep the details surrounding the suspension confidential where possible, make sure the suspension only lasts as long as necessary, explain the employee’s responsibilities during suspension, name a person who can be contacted if there are any concerns and keep in regular contact with the employee throughout.
It is important to consider the health and wellbeing of the employee during suspension
The employer must carry out an investigation to gather as much information as they reasonably can regarding an employee’s alleged misconduct of poor performance.
Ideally, the investigation should be carried out by someone not related to the case. The employer should consider who will deal with each potential part of the process – e.g. investigation, disciplinary and appeal.
The information might include documents and witness statements from all sides.
The employer should consider re-interviewing individuals if points are new points are raised during the investigation process. It is not a legal requirement to allow an individual to be accompanied during a disciplinary investigation meeting, however it is best practice to allow this.
The employer should be mindful of any workplace policies and procedures, and should also stress the importance of confidentiality throughout the process.
Invite to the disciplinary hearing
Where the investigation shows the employee has a case to answer, the employee should be invited to a disciplinary meeting or ‘hearing’
The employee should be given reasonable time to prepare.
Before the hearing, the employer should put in writing to the employee the alleged misconduct or performance issue, any evidence gather during the investigation, any other information they plan to discuss, the date/time and location of the hearing, information about the right to be accompanied, and the possible outcomes.
The right to be accompanied
The employee should tell their employer as soon as possible who they want to bring so that arrangements can be made.
The law states that an individual can be accompanied by a work colleague, a workplace trade union representative who is trained or certified as acting as a companion, or an official employed by a trade union.
However, employers can allow companions from outside these categories, and should consider whether a request to be accompanied by a certain individual would be deemed a reasonable adjustment under the Equality Act 2010.
During the hearing, the companion should be allowed to set out the employee’s case, respond for the employee to any points made at the hearing, talk with the employee during the hearing, take notes and sum up the employee’s case at the end of the hearing
What should happen during the disciplinary hearing?
The employer should explain the employee’s alleged misconduct or performance issue, go through the evidence and make sure someone takes notes.
The employee should be given the chance to set out their case, answer any allegations, ask questions, show evidence, call relevant witnesses (with good notice), respond to any information given by witnesses and choose if their companion can speak for them during the hearing.
We recommend that the employer takes some time after the disciplinary hearing before making a decision. The employer should provide a timeframe to the employee for next steps.
What should the employer do if the employee is absent or off sick?
The employer should pause the disciplinary hearing until the employee returns to work.
If the employee still says they cannot attend or goes on extended sick leave, the employer should consider making other arrangements to facilitate the procedure. For example, holding the meeting elsewhere or remotely.
If the employee still refuses to attend, the employer will need to consider the case and come to a reasonable decision. If the employer reaches a decision in an employee’s absence, they should tell the employee in writing and advise them of their right to appeal.
Before making the decision regarding the disciplinary outcome, the employer should consider the findings from the investigation and meetings, what is fair and reasonable, and what the workplace has done in other similar cases.
The employer should tell the employee the disciplinary outcome as soon as possible and in writing
Possible outcomes include:
- No further action
- Informal warning
- First written warning
- Final written warning
We recommend that legal advice is sought regarding disciplinary outcomes.
If the employer is considering dismissal
Dismissal may be an option if the employee has committed gross misconduct or if the disciplinary procedure has needed to be repeated and the employee previously had a written warning.
The employee should be told, as soon as possible, the reasons for the dismissal, the date the employment contract will end, the notice period and the right to appeal.
When communicating a disciplinary outcome, the employee should be notified of their right to appeal.
The employee can appeal if they feel the outcome was too severe or if they think any stage of the disciplinary procedure was wrong or unfair.
Ideally, the appeal should be heard by an individual who has not been involved in the disciplinary process previously
If the employee’s conduct or performance does not improve in the timeframe set, the employer should repeat the disciplinary procedure until improvements are made or until dismissal is the only fair and reasonable option.
No matter what the outcome, it is a good idea for employers to keep a written record of all disciplinary cases to help with any questions or similar cases in the future It might also be a good idea to speak privately with employees who are aware of the disciplinary to help avoid any negative effects on the business.
If an employee is dismissed or leaves their employment, there is no legal obligation for an employer to provide a reference. However, if the employer does provide the reference it should be fair, accurate and consistent with others, so may need to provide information about the disciplinary outcome.
If you require assistance with any of the above matters, please contact the Employment Team today.