The challenges of the disciplinary procedure

18 / 09 / 18

The disciplinary procedure is a process to follow when you want/need to address an employee’s behaviour. It may be that you’re concerned about their general conduct, absence, their work for example. It allows you, as the employer, to explain clearly what improvement is needed and provides an opportunity for the employee to give their side of the situation.

The disciplinary procedure is complicated and it’s vital that you get this right, because failure to do so can result in a case of unfair dismissal on the grounds of failing to follow a fair process. This blog sets out the challenges of the disciplinary procedure and later in the month will be followed with some simple steps to optimising your process. Each section below lists the key challenges faced for conduct, performance or absenteeism:

Conduct

  1. The first challenge is getting managers to see the process as corrective not punitive. More often than not, Managers view the procedure as punitive and therefore avoid initiating the disciplinary procedure at the appropriate time and instead allow employees to continue to behave inappropriately. The disciplinary procedure is intended as a means to bring about improved behaviour not as a means to dismiss. Dismissal should result only as a last resort except in cases of gross misconduct.
  2. While on the subject of gross misconduct, the second challenge is managers knowing when it is appropriate to suspend an employee pending investigation and when it is not.
  3. Managers following the procedure correctly. As HR professionals, on occasion we have found that a disciplinary investigation was not conducted at all before the hearing was initiated. On other occasions we have found that the wrong people were involved in the process, which led to lack of objectivity etc, for example a witness carried out the investigation or the disciplinary officer also carried out the investigation.
  4. The fourth is linear organisation structures resulting in inadequate numbers of people at appropriate levels to carry out the procedure objectively. Either that or despite there being enough people they lacked the knowledge due to inadequate training, instruction or support.
  5. Making sure that the decision to apply a sanction is only made following the disciplinary hearing and not before. We have seen an investigatory officer recommend sanctions in their investigation pack sent to the disciplinary officer, we have seen disciplinary officers involve other people in their decision making, and have seen disciplinary officers decide the outcome before even going into the disciplinary hearing.
  6. Getting disciplinary officers comfortable with conducting a disciplinary hearing. We have seen senior management in large companies avoid taking on the responsibility even after years in post.
  7. The seventh is making sure that the disciplinary officer covers off the very basics with the employee at the beginning of the disciplinary hearing before asking any questions about the incident itself.
  8. Making sure that the disciplinary officer asks the right questions to uncover all of the facts and any mitigating circumstances to the point they feel confident they can adjourn and make a decision.
  9. Ensuring the disciplinary reviews the facts of the case objectively and takes any mitigating circumstances into consideration when determining whether there should be a sanction and to do so alone without any input from the note taker.
  10. The tenth challenge is making sure that the sanction is consistent with the seriousness of the incident in question. We have known cases of gross misconduct where the employees were not dismissed and conversely cases where general misconduct resulted in dismissal. Either of these are likely to make it difficult to discipline future cases appropriately, some resulting in tribunal cases for unfair dismissal due a precedent set in a previous case.
  11. The final conduct challenge can be in the disciplinary officer accurately delivering the outcome i.e. the sanction and the reasons for it or reminding the employee of their right to appeal the decision.

Performance

  1. As with conduct, the first challenge with performance is that managers can often fail to see the procedure as corrective not punitive and therefore fail to initiate the formal performance management procedure at the appropriate time resulting in a continuation of under performance.
  2. The second is ensuring managers realise their first task is to counsel the employee to understand what might be contributing to under performance and what support is needed by the employee.
  3. Ensuring that managers know how to provide the support to the employee or know where to go to obtain the support for the employee.
  4. The fourth is making sure the manager is able to set performance targets appropriately and accurately and measure performance against those targets objectively.
  5. Making sure that managers hold the performance review meetings regularly and on time, recognising improvement and congratulating it, identifying and highlighting where improvement is still needed, and applying a sanction where appropriate e.g. first written warning.
  6. Keeping the formal performance management procedure on track throughout. We have seen a case of performance management that was abandoned, even though all the improvement targets were not met. In this case, after improving a little the employee’s performance soon began to wain again, perhaps not surprisingly.
  7. The last but, perhaps most challenging, requires the manager bringing themselves to initiate the capability procedure and dismiss an employee who, despite receiving all the support available, has been unable to meet the standards required for no reason other than lack of competence. It’s a tough call.

Absenteeism

  1. As above, the first challenge here is that mangers can often fail to see the procedure as corrective not punitive and therefore fail to initiate the formal attendance management procedure at the appropriate time resultant in poor attendance continuing.
  2. Similar to performance management the second challenge is for managers to counsel the employee to understand what might be contributing to the poor attendance and what support is needed by the employee.
  3. The third is managers knowing if there are absences that do not count towards poor attendance, which might involve the support of occupational health and may result in recommended adjustments.
  4. Managers being able to determine if a recommend adjustment is reasonable and when it isn’t, and how to apply it.
  5. The fifth is managers bringing themselves to initiate the capability procedure and dismiss an employee who, despite having lots of adjustments made for them, are still unable to attend work regularly for no other reason that they have an illness or a disability. This is a tough call.
  6. When the absences that do not count have been discounted, the sixth challenge is ensuring that managers follow the absence management procedure, holding a hearing and giving the appropriate sanction.
  7. Ensuring that managers keep a close eye on attendance to monitor further periods of absence, and then hold further disciplinary hearings and give further sanctions when a trigger point is reached.
  8. Taking the final decision to dismiss for poor attendance.


There are several challenges that managers face throughout all of the above scenarios.

  • Unlike operational matters, disciplinary matters cannot be referred upwards by managers for guidance and support because it is absolutely paramount that the appeal officer does not form an opinion about the validity of a particular disciplinary sanction, before the appeal hearing has taken place.
  • Managers must handle the matter in the strictest confidence, only those who need to be involved should have any knowledge of it and only then on a need to know basis only.
  • Following GDPR guidelines, managers need to know how long to retain a disciplinary sanction beyond the sanction period, on the employees personnel file.
  • The fifth challenge is simply having the time to devote to time consuming and often demoralising formal procedures.

Even where all these challenges have been overcome many companies are finding more effective ways to drive good conduct, high performance and regular attendance such as increased employee engagement, adapting a coaching style (rather than command and control) and introducing recognition and reward schemes, all of which we are a major advocate.

As you can see, it’s hard to get this right and it’s something you really don’t want to get wrong for litigation purposes. So, if you feel you need HR support in this area, please do contact us on 01453 297557 or send an email to enquiries@peepshr.co.uk


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