Our latest blog explored the challenges of the disciplinary procedure in relation to conduct, performance and absenteeism. The disciplinary process is a complicated yet essential management tool to permit managers to deal fairly and consistently with any employee who is underperforming or breaches the rules. It’s extremely important that you get this right and conduct yourself in accordance with the ACAS Code of Practice, because failure to do so can result in a case of unfair dismissal on the grounds of failing to follow a fair process.
For an organisation to operate effectively, standards for conduct, performance and attendance need to be set. The majority of cases of unacceptable performance, minor misconduct or absence are normally dealt with on an informal basis. However, there are, of course, cases whereby formal action is required. You should deal with these issues promptly, consistently and fairly with a full investigation undertaken to gather the facts. This should then be presented to your employee to allow them to put their case forward.
Process is key and the following blog aims to uncover 6 steps for optimising your disciplinary procedure and guide you in carrying-out a fair and consistent disciplinary process, ensuring you’re not walking a legal tightrope:
1. Consider informal action
You need to evaluate the severity of the conduct, underperformance or absence. Informal action can be a useful tool in relevant situations and can save you and your team a lot of time and resources. Do make sure that the employee is aware that formal action may be taken if the problem isn’t resolved at this point.
At this stage, think about holding a meeting with your employee to highlight the problem, attempt to highlight why it has arisen and agree what action is needed.
Ensure you keep a written record of the conversation in case this is needed later on. Also make sure that you follow-up in writing, setting out what has been proposed/agreed, stating that if there is no improvement, disciplinary action will follow.
2. Consider formal action
Formal action may be necessary in more serious cases and in these circumstances you should follow the ACAS Disciplinary and grievance procedure, code of Practice. Although not law, an employment tribunal will take this into account when determining if you, as an employer has acted reasonably.
To ensure a fair dismissal process, you must be able to show that at the point of deciding on a sanction which could include dismissal that on the balance of probabilities, the employee was found to have broken the rules, under performed or been unreasonably absent. And, you must be able to present the facts gathered during the investigation. Always deal with issues promptly and follow a clear procedure, enabling you to show that you’ve acted consistently. Always keep in the forefront of your mind that any employee with two years’ service, who is dismissed, can bring an unfair dismissal claim if you haven’t followed the correct procedure and any employee regardless of length of service may be able to bring a discrimination claim if they are unclear about the reason for their dismissal and have a protected characteristic which the company was aware of.
3. The procedure
The investigation should be carried-out promptly and the employer should interview the employee and if necessary any witnesses. The employee isn't entitled to be accompanied to an investigation meeting, however, some disciplinary procedures permit them to be. The employer should record all evidence gathered during the investigation and following on from the investigation, the employer should determine if there is a case to answer.
If the evidence gathered suggests the matter is not serious enough to proceed with a formal disciplinary they may make a recommendation that it is treated informally. Either way, if there is no case to answer formally the investigating officer should write to the employee and inform them that no formal disciplinary action will be taken.
However, if there is a case to answer, the investigation file should be passed to the disciplinary officer recommending disciplinary action is taken. The disciplinary officer should invite the employee to a disciplinary hearing enclosing a copy of the disciplinary procedure if they do not already have access to it. In the letter they should specify the date, time and that the employee is entitled to be accompanied by a representative. At this point, ensure they have a copy of all the investigation notes and allow them sufficient time to prepare. Where possible, the person holding the disciplinary should be different to the person that held the meeting.
4. The disciplinary meeting
This is the point whereby the employee is given the chance to put forward their case in response to the employer’s allegations. The disciplinary officer leading the meeting should be someone more senior than the employee in question and be accompanied by an impartial colleague taking notes. The employer must stick to the allegations set out in the invitation letter and, as the meeting concludes, the employer should confirm that they will consider all evidence then adjourn to decide on the course of action.
5. The outcome
It is important the the disciplinary officer makes the final decision, however during the adjournment they may wish to take HR advice to make sure they have considered everything, and the sanction they are giving is consistent with any similar previous cases. The meeting can be reconvened once a decision has been reached and the employee can be informed of the outcome verbally, the reasons why and their right to appeal. A letter should immediately follow confirming in writing the sanction imposed and the reasons behind the decision and reminding them of their right to appeal.
Employees have the right to appeal any disciplinary sanction and may well exercise it. If they do the employer must invite the employee to an appeal hearing (with the right to be accompanied). The person holding the appeal should be a person in seniority and where the organisation structure permits be a different to the person who held the disciplinary meeting. Following the appeal meeting, the employer is to set-out in writing whether or not the appeal is upheld.
Carrying-out a disciplinary procedure, especially if this isn’t an area you’ve had to deal with previously, is an extremely daunting task. Hopefully the above has outlined the steps you need to take to ensure you avoid any form of legal action. However, we also appreciate that you may prefer to have a helping hand and robust guidance along the way, so, if you would like HR advice or support, make sure you contact us on: 01453 297557 or send an email to email@example.com