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Disciplinary

Andrew Willis

Andrew Willis

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09 Jan 2020

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When running a business, you’ll need to deal with grievances and disciplinarily issues from time to time.

There are varieties of reasons that may lead to the need for disciplinary action. It may be due to an employee’s behaviour, conduct, performance or absences from work.

Whatever the reason, you must have a fair process in place. If you’re looking for answers to immediate concerns about your employees’ behaviour, contact the Croner team now on 0808 145 3380.

This piece focuses on disciplinary in the workplace. We’ll explore the process and procedures for writing a disciplinary letter and creating a disciplinary policy.

 

What is a disciplinary?

It’s the act of enforcing discipline for wrongdoing or incompliance.

Although it’s most common in workplaces, wherever there are a set of rules, there’ll also be some form of disciplinary procedure for breaking said rules.

Disciplinary at work is the formal process for handling breaches to an employee’s contract of employment.

It’s an everyday aspect of many HR professional’s working lives as it relates to a variety of concerns that may arise in the workplace.

Examples of instances that may lead to disciplinary include:

  • Substance misuse.
  • General misconduct.
  • Declining performance.
  • Unauthorised absences.
  • Bullying and harassment.
  • Health and safety violations.
  • Misuse or theft of company equipment (social media, phone, car, computers, etc.).

The ACAS Code of Practice on disciplinary and grievance procedures recommends that employers introduce a policy outlining their commitment to fair disciplinary hearings and explaining their grievance reporting procedures to staff. This document can make part of the terms and conditions included in their contract of employment.

Before going down the disciplinary route, it’s important to consider discussing any issues with the employee it involves first. It’s often a good way to resolve issues quickly without involving other people or using up resources.

You can resolve issues by:

  • Talking privately with the parties involved.
  • Listening to their point of view.
  • Coming up or agreeing with suggestions for improvements or adjustments you can make.
  • Creating a plan for training and development (if the issue relates to an employee declining performance).

However, where this is not possible, then you can carry on with the formal disciplinary process.

If you do decide to do this, you must follow the written process that sets out the standards of fairness you’ll follow during the process.

As well as protecting the employee from unfair treatment, it also protects you and your business from claims of unfair dismissal or discrimination.

The disciplinary process must include the following steps:

  • Sending out a letter detailing the complaint or the reasons you’re considering disciplinary action.
  • Inviting them to a meeting to discuss the issue.
  • Making a decision on disciplinary action based on arguments made in the hearing.
  • Giving employees the chance to appeal any disciplinary action.

The government suggests following the Acas Code of Practice on disciplinary and grievance procedures.

While it’s not a legal requirement, if you don’t and you lose at an employment tribunal, you may be liable to pay more than you would if you followed the code of practice.

 

Disciplinary procedure

As with all disciplinary and grievance matters, you may need to carry out an investigation into the concern to find out all you reasonably can about it.

The purpose of this is to:

  • Decide if there’s a case in the first place.
  • Ensure a consistent and fair process.
  • Gather evidence from all parties involved in the disciplinary proceeding.
  • Help you decide on the appropriate next step.

After the investigation, if you decide there’s a case for the employee to answer, you can then send out a disciplinary letter informing the employee about your concern.

The letter should include details of the allegations against the employee(s) and information about the next step of the process. The disciplinary letter should also include enough information for the employee to prepare a response during the disciplinary meeting.

Remember to add the date and location of the disciplinary hearing and highlight their right to have someone present at the hearing. This can be a colleague or a representative from their trade union.

It’s important to remember, the reason for the disciplinary hearing is to determine if the employee breached their contract of employment. You shouldn’t consider taking any disciplinary action before or during the meeting.

As a guide, we’ve provided a disciplinary letter template you can adapt for use in your organisation.

We also created an infographic with an overview of the steps of the disciplinary procedure you must follow to ensure a fair process.

 

What is a disciplinary hearing?

It’s the meeting between yourself and your employee to discuss your concerns and to allow them to set out their case.

The disciplinary meeting (also referred to as a disciplinary hearing) is where you explain the details of the complaint again your employee including all evidence gathered during the investigation stage.

To avoid claims of discrimination at an employment tribunal, it’s important to know how to conduct a disciplinary meeting.

  • The first step is to ensure that you are following the basic principles for fairness and equality during the process. Like we mentioned above, you can refer to the Acas code of practice on disciplinary and grievance procedures for the best business practices.
  • You’ll also need to appoint someone to take note during the disciplinary process. For the sake of fairness, consider someone that isn’t involved in the case.
  • The next step is to highlight the procedure that you’ll follow during the process and to identify all parties involved in the procedure.
  • When everyone involved is present, you then lay out the cases again the employee.
  • If you have questions to establish the facts of the case, you can ask them here. You should then allow the employee enough time to state their side of the story as well as any mitigating factors that might influence your decision.
  • If new matters arise during the hearing, you may adjourn the procedure until you’ve had time to carry out investigations.
  • After considering all sides and the evidence provided, you can then decide if the issue warrants disciplinary action or not.
  • Finally, you should inform the employee of your decision in writing. The letter should include the reasons for the decision you’ve made and their right to appeal it if they aren’t satisfied.

You can also consider the following disciplinary meeting tips for a successful outcome:

  • Preparation: Make sure all parties involved know where and when the meeting is and what you'll discuss in it. You should also make sure the employee involved is aware of his/her right to have someone accompany him or her to the meeting. This could be a co-worker or a union representative.
  • Taking notes: It’s important to have an impartial party in the meeting to take notes. These notes may serve as evidence if the employee makes claims of unfair dismissal to an employment tribunal down the line.
  • Reasonable adjustments: If you have a disabled employee, or if they’re unable to attend the hearing for any legitimate reasons then consider any reasonable adjustment you can make to allow ensure the process runs smoothly.
  • Fair process: It’s important to be impartial. Remember to allow your employee enough time to have their say. As a rule of thumb, before adjourning the disciplinary meeting, it’s a good idea to ask the staff member if they’ve managed to put their case across successfully. If they’re satisfied with the information they’ve provided then you can adjourn the meeting before making your decision.
  • Data protection: Remember data protection laws during the procedure. If you'll be collecting and retaining relevant personal information, provide your staff with a written notice on how you'll collect, use and store said information.

 

Can you record a disciplinary meeting?

Yes, you can, however, you may only do so if all parties agree to the recording.

There’re many reasons why you may consider recording this meeting including the hope that it’ll support you if you’re ever taken to an employment tribunal for unfair dismissal or discrimination. You may also consider recording the disciplinary meeting as a substitute for having note-takers at the meeting.

If you do decide to do this, you’ll need to consider the following:

  • Your obligations under the Data Protection Act 1998.
  • If recording covertly breaches your staff’s right to a private and family life under the European Convention on Human Rights.
  • Treating the recording as ‘personal data’ under the Data Protection Act. This means you must also process the recording in accordance with the principals set out in the Data Protection Act.

After the disciplinary meeting, you can allow some time to consider the case carefully before making a decision. If you aren’t making a decision immediately, you should inform all parties of the timeframe in which you’ll have a decision.

Once you’ve decided on the appropriate disciplinary action, you must inform the employee of it in writing. There’re different actions you can take after this meeting depending on the circumstance.

Examples of disciplinary actions include:

You’re required to inform your employee of the outcome of the hearing in writing. The disciplinary action letter to your employee should include a summary of what you discussed in the hearing as well as any disciplinary action you deem fair and reasonable.

When you decide that there was no misconduct, you should end the procedure immediately and inform all parties involved with the disciplinary procedure. For future reference, consider keeping a report of the procedure and outcome.

 

Corrective action vs disciplinary action

Corrective action is the process of correcting an employee’s behaviour, attendance or performance.

Although similar to disciplinary action, you may consider taking corrective action if issues aren’t serious enough to warrant disciplinary action. For example, when addressing issues related to the employee’s capability, you may decide to take corrective action such as offering additional training or allowing for time off to attend skill development courses. If you haven’t seen any improvement in the employee’s performance, you can then consider taking disciplinary action.

 

Disciplinary procedure timescales

There’s no specific timeframe for how long the disciplinary process should take.

While there’s no specific information as to how much notice must be given for a disciplinary hearing, Acas’s Code of Practice on disciplinary and grievance procedures suggest holding the meeting as soon as is ‘reasonably possible’ while giving the employee enough time to prepare their response.

It’ll depend on the circumstances of individual cases. While some cases may be straightforward, others may require you to carry out investigations and interviews that could run for a while.

Whatever the cases may be, the timeframe should reasonable. Not short enough that your staff isn’t able to prepare their defence, but also not long enough that you leave the employee in an extended state of suspense.

There’s also no time limit for disciplinary actions, it should be reasonable. If you decide on dismissal, then inform them as soon as possible in writing including information about their notice period and their right to appeal.

When issues arise related to a staff member’s performance or behaviour, you can set a timeframe in which you’d expect to see improvements. If your expectations still aren’t met, you may repeat the process until you feel dismissal is the only reasonable option.

 

Disciplinary policy

It’s important to have policies in place that highlights your company’s position on various issues.

A disciplinary policy ensures you are clear, fair and consistent when dealing with issues related to misconduct or grievances. It should set out what behaviours are acceptable and what aren’t and highlight what you expect of your staff as well as the repercussions for not adhering to the policies.

While the content of your disciplinary policy will depend on the nature of your business, it should generally include the process you’ll follow to carry out:

  • Formal and informal warnings.
  • Disciplinary meetings and actions.

It should also remind the employee of their rights to have someone accompany them to the hearing as well as their right to appeal following the disciplinary decision.

To ensure your staff are aware of your stance on these issues, you should have your policies readily available. Include it in your staff handbook, on the company intranet and anywhere else you deem fit.

 

Expert Support

Croner’s Employment Law advisors are some of the most renowned and knowledgeable professionals in their respective fields. Contact the team for advice on handling disciplinary and grievance issues in the workplace. Call us now on 0808 145 3380.

About the Author

Andrew Willis

Andrew Willis is the senior manager of the Litigation and Employment Department and assumes additional responsibility for managing Croner’s office based telephone HR advisory teams, who specialise in employment law, HR and commercial legal advice for small & large organisations across the United Kingdom.

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