Managing disciplinary issues in the workplace is something few managers relish. However, employers could be exposed to potentially valid unfair dismissal claims if the fundamental basics are not followed.
Most organisations will have their own policies and procedures which must be adhered to when managing disciplinary issues. However, those procedures must also comply with the relevant ACAS Code of Practice.
Handling a disciplinary issue can be a daunting prospect. In this article we look at 5 steps which are critical to ensuring a fair and reasonable disciplinary process.
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Establish the facts
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Assign responsibility for the investigation to someone who is ideally unconnected to the allegations. Where this isn’t possible (e.g. due to the size of the company), consider appointing an external third party to conduct the investigation.
Conduct the investigation without unreasonable delay. Consider whether it is necessary to suspend the employee pending investigation and document your reasons if you do. Minimise the period of suspension and keep the continued need for it under regular review.
Collate relevant documentary evidence at the outset of the investigation and continue to collect this during the process. In some cases, it may be necessary to interview the employee. Interview witnesses to obtain their account of the incident or events, and produce clear, comprehensive notes and/or signed statements.
Interviews should be held in private, observing the need for confidentiality.
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Inform the employee of the alleged issue and the evidence, and allow them to respond
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If formal disciplinary action is not required, a letter should be sent outlining concerns and potential consequences if no improvements are made.
If the issue is to be progressed to a formal disciplinary hearing, the employee should be provided with details of the alleged misconduct and/or poor performance to enable them to prepare their case. They should also be provided with copies of any documentary evidence which has been collected such as witness statements, along with details of when and where the disciplinary hearing will be held. Ensure that the employee is given reasonable notice of the hearing – ideally not less than 48 hours, but longer may be required in some cases.
All parties involved should make every effort to attend the disciplinary meeting. At the meeting the employer should inform the employee of the alleged complaint and discuss the evidence, allowing the employee to set out their case and respond to the allegations.
A written record of the meeting should be taken, and agreed with the employee wherever possible, and the employer must take note of any mitigating factors.
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Allow the employee to be accompanied
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The ACAS Code of Practice states that ‘Employees have a statutory right to be accompanied by a companion where the disciplinary meeting could result in:
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- a formal warning being issued; or
- the taking of some other disciplinary action
- the confirmation of a warning or some other disciplinary action (appeal hearings)’
To exercise their statutory right, employees must make a reasonable request to have a companion present at the hearing. A companion can be a fellow worker, trade union representative, or other trade union official.
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Decide on the appropriate course of action
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Check procedures and historical decisions for possible outcomes before deciding on appropriate action. If disciplinary action is justified, then the employee should be informed in writing.
A written warning is usually the first course of action with regards to misconduct or poor performance. The employee should be notified with appropriate standards and/or improvements which are expected to be made within a set period, and advised that any further acts of this nature can result in further disciplinary action.
Depending on the seriousness of the issue, the outcome may justify a final written warning and the employee should be notified in writing of the consequences of further misconduct or failure to improve performance within a set period.
If the decision is to dismiss, such as in cases of gross misconduct, or where the employee has a live final written warning already, the employer must issue a written notice of dismissal, including the reason for dismissal, the effective date, and the right of appeal.
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Provide employees with an opportunity to appeal
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An employee has the right to appeal against any disciplinary action taken by their employer if they feel the action is wrong or unfair. They should do so by setting out the grounds of their appeal in writing before the appeal deadline.
Appeals should be heard without unreasonable delay and dealt with impartially by a manager who is unconnected to the case, and who is ideally senior to, or at least of equal seniority to, the dismissing officer. As with disciplinary hearings, employees have a statutory right to be accompanied at an appeal hearing.
Employees should be informed of the outcome of the appeal hearing, in writing, as soon as possible.
Whilst a formal disciplinary process can be time consuming, if managed properly, it will allow you to resolve issues effectively and efficiently, and hopefully without resulting in a time-consuming and often costly Employment Tribunal claim.
If you’re an employer who needs support implementing an effective disciplinary procedure, are considering appointing an external third party to conduct a pending investigation, or are dealing with an Employment Tribunal claim, please contact us on 01942 727200 or email enquiries@employeemanagement.co.uk in confidence and without obligation to find out how we can help.