08 Jan 2021
When dealing with employee misconduct or underperformance, you will often give them feedback and try to nurture the employee to be better. Informal processes allow you to keep a good working relationship and to avoid legal matters.
However, sometimes an employee will simply not get the message. An employee may repeatedly commit the same offence, or they may have one serious incident. This can lead to you resorting to a disciplinary.
Here, let’s look at the disciplinary procedure. What it is, why it’s important and how to carry one out.
What are the disciplinary procedures in the workplace?
It’s a formal way for you to deal with an employee’s transgression. This may include an act of gross misconduct or a performance issue.
Depending on the severity of the transgression, there are different avenues an organisation may take to deal with the misconduct, ranging from an informal discussion with a manager to more formal proceedings that follow a set process as laid out in the Employee Handbook.
However, we recommended that you try an informal disciplinary procedure before stepping up to formal proceedings.
Why a disciplinary procedure is important
As the government outlines the process in legislation, it is essential you follow a proper procedure. They set it out so employers treat staff fairly and consistently.
ACAS sets out a Code of Conduct that you don’t need to follow, however it is advisable you do so as tribunals do take this into account. You can have your own internal process as long as it is legally compliant with the Code of Conduct. If you do not follow what they deem as a fair procedure, this can lead to a
It’s also important because a disciplinary procedure ensures that employees reach the standards expected of them, both in terms of their behaviour and their performance.
Despite the name, the purpose of the disciplinary procedure is not all about reprimanding employees. It’s also about working with employees to maintain high standards of conduct and competence, and encouraging improvement if they fall below these standards.
One of the more powerful advantages of disciplinary procedures is that it provides an opportunity for employees to tell their side of the story, learn from it, and potentially improve processes or workflows.
The ACAS disciplinary procedure steps
Employment law’s disciplinary procedures are set by ACAS and their guidance. This makes disciplinary's and grievances particularly important to conduct properly.
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.
ACAS sets out disciplinary rules and procedures. We recommend the procedure steps to be as follows:
Understand the options
Decide if there’s a formal case. Before starting a disciplinary procedure, you should first see whether you can resolve the problem informally. Ensure a consistent and fair process.
A disciplinary is usually about someone’s conduct on the job rather than their ability. You should use a capability procedure to respond to issues in performance, however if their performance is related to conduct, such as them deliberately not doing their job properly, you can then go down the disciplinary route.
Follow a fair procedure
If you have tried to resolve the issue informally but feel you need to start a disciplinary procedure, you must tell the employee straight away.
You should do this in writing. 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.
You must make sure you follow a full and fair procedure throughout. This means treating employees the same if this kind of disciplinary has occurred before and ensuring you follow the rules in your employee handbook.
Carry out an investigation
Gather as much information as you reasonably can about the employee’s alleged misconduct or poor performance. Look at evidence from all parties involved in the disciplinary proceeding. This will help you decide on the appropriate next step.
The disciplinary hearing
It’s important to remember the reason for the disciplinary hearing is to determine if the employee Committed an act of misconduct. You shouldn’t consider taking any disciplinary action before or during the meeting.
The hearing should be held as soon as possible after the investigation while giving reasonable time for the employee to prepare.
The hearing is the chance for both you and the employee to state their case. This is where you explain your perception of the misconduct and present your evidence. Ensure you take notes during the hearing.
You must allow the employee to set out their case, defend themselves against the allegations and ask questions.
You should take some time after the hearing to contemplate the case before deciding. You should then:
- Tell the employee what happens next and give a timeframe
- Take a written confidential record of the hearing
However, employers can hold a hearing in their absence if they think it is necessary, but this should be avoided if possible.
Deciding on the disciplinary outcome
After following a fair disciplinary procedure, decide on the best outcome based on:
- the findings from the investigation and meetings
- what is fair and reasonable
- what their workplace has done in any similar cases before
For a disciplinary outcome that's not a dismissal, it's a good idea for you to give the employee specific goals and timeframes for improvements. This is to allow a fair process.
The outcomes can be
- No action needed
- Informal warning
- First written warning
- Final written warning
- Moving department
You should tell the employee of the outcome as soon as possible and in writing. You must also offer the employee the right of appeal.
Employee disciplinary procedure timescales for appeals
There is no specific legal timescale in which you should hold a disciplinary appeal hearing. However, the ACAS code of practice on disciplinary procedures in an organisation states that you should hear appeals without unreasonable delay, and ideally at an agreed time and place.
What makes up an "unreasonable delay" will depend on the circumstances. The employer should keep the employee informed of the reason for any delay, for example, the sickness of a key individual, or the need to investigate additional evidence that has come to light.
Is capability a disciplinary procedure?
No, not usually. Capability is about an employee's ability to do their job.
Usually, it's a capability issue if the employee has no control over it. For example, if an employee becomes unable to do their job because of an illness and adjustments or support cannot help.
For a capability issue, you should follow either:
- A capability procedure
- A performance management procedure
Is there a time when you can have a dismissal without a disciplinary procedure?
While you can dismiss an employee without notice, there is no instance where you can dismiss someone without a proper and fair procedure.
Even during summary dismissal, you must still follow a fair disciplinary procedure for gross misconduct, as you would do for any other disciplinary matter.
Most problems will require a robust disciplinary and grievance procedures, and the legal aspects of disciplinary procedures can be difficult to navigate. Contact the experts at Croner for advice on disciplinary procedures in the workplace on 0145 585 8132
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