Where an employer is concerned about misconduct such as lateness or absence, bullying or harassment, breach of company policy or issues of job performance, it may choose to initiate a disciplinary process to formally address concerns. For serious violations amounting to gross misconduct, such as theft or violence, although summary dismissal may be possible, a formal disciplinary process must still be followed to avoid claims of unfair dismissal. Employers are expected to follow fair and reasonable processes in disciplinary matters and to adhere to the ACAS Code of Practice on Disciplinary and Grievance procedures. For unreasonable failures to comply with the Code, the Employment Tribunal has the power to uplift any compensatory awards by 25%.
The structure of the disciplinary process should be documented in the company’s staff handbook so that the process is transparent. This should be made available for employees to review. Disciplinary policies should be regularly reviewed, and managers should be given up to date training to ensure that they can implement a rigorous and fair process.
Conducting a fair disciplinary process
An employee must always be informed of the allegations that are being made against them before any action is taken. The allegations must be detailed sufficiently so that the employee can prepare a response. For example, this will include giving the employee details of times and dates of incidents. The allegations should be documented in writing, and the employee informed that an investigation will commence.
A senior manager should be appointed to conduct the investigation to collate evidence and witness statements. The individual should be someone who is impartial and not directly involved in the matter.
If following the investigation, there appears to be a case to answer, the matter can then proceed to a disciplinary hearing. An employee has a number of rights during a disciplinary process. These include being given reasonable notice of the hearing and sufficient time to prepare, being allowed to be accompanied by a colleague or trade union rep, receiving written explanations and copies of evidence and the right to appeal against any decisions.
The Hearing should be conducted by an impartial manager or other third party like a HR professional. The matter should be handled sensitively and the employee offered any reasonable or necessary support in the run up to and during the Hearing. An employer should be mindful of characteristics that may place an employee at a disadvantage, such as a disability and should be prepared to make reasonable adjustments for these. If an employer fails to do this and continues a process in disregard of an employee’s individual circumstances, it may leave itself open to claims of discrimination and allegations that the process was not fair.
The employee should be given a clear opportunity to respond to allegations and state their case during the Hearing. The potential outcomes should be communicated to the employee, and they should be made aware of their right to appeal.
Outcomes and Appeals
Having considered the evidence fairly and impartially, a decision must be communicated to the employee without undue delay. This should be documented in writing, and the employee informed of their right to appeal and the deadline by which to submit an appeal and to whom. The outcome of the disciplinary process will depend on the circumstances, but the sanction must be appropriate and proportionate to the charge. Possible outcomes include verbal or written warnings with timeframes attached, final written warnings or dismissal.
A failure to follow a robustly fair and transparent procedure can lead to Tribunal Claims where employees are unhappy about the outcome. Proper planning, up to date policies, management training and comprehensive documentation can help mitigate legal and financial risks. This not only protects the business but also fosters a positive workplace culture.
How we can help
We’re specialists in navigating complex and sensitive disciplinary issues. We provide you with practical guidance to be able to conduct a fair and transparent process that adheres to employment law rules.
We can assist you in matters of misconduct, gross misconduct and performance concerns by:
- Reviewing allegations and advising on whether to commence action
- Providing practical and legal advice on how to conduct an investigation
- Advising on the disciplinary process legal and practical requirements
- Reviewing and drafting all documents necessary in the process
- Providing strategic advice to avoid disputes and claims
Please call us today to speak to an expert employment solicitor for a free 30-minute initial consultation on 01753 861 115, email us at enquiries@charles-coleman.com or complete our contact form, and we will be happy to help.
