Disciplinary for Businesses

What Is a Disciplinary Procedure?

Disciplinary procedures encompass a series of undertakings aimed at the application of specific disciplinary actions against employees. These actions don’t always entail the end of the employment relationship, for that would depend on the offence committed and/or whether there were records of previous disciplinary measures.

Having a great disciplinary procedure in place that is followed right can ensure that businesses can address issues of misconduct committed by employees with fairness.

With a disciplinary procedure, you can inform an employee of inappropriate behaviour, resolve concerns, encourage improvement, impose sanctions where necessary, and be in a good position to defend against unfair dismissal claims.

If you are looking to create a fair disciplinary procedure in line with UK regulations or need support with wrongful or unfair dismissal claims, get in touch with us today at 03334149244.

Why Is a Disciplinary Process Needed?

Both national and international employment laws uphold several guarantees in favour of employees so that they ensure a stable source of income and are not arbitrarily deprived of it. UK regulations on employment, following worldwide legal trends on the matter, endowed employment contracts with a level of protection not normally given to contracts in the civil space, owing to the off-balanced nature of the working relationship.

In that sense, disciplinary procedures are designed to grant legal certainty to employees. Skimping on these duties as an employer could cost you both time and money through tedious tribunal hearings and hefty compensations, respectively.

These procedures are enforced under Section 3 of the Employment Rights Act 1996 and should get underway whenever there are allegations or suspicions that an employee has committed any fault or offence that’s worthy of dismissal or written warning.

You are only exempt from initiating these procedures in cases involving employees who have spent less than two years working for you. Otherwise, you ought to make sure that the reason for dismissal is “fair” and that the employee was offered appropriate means to make his/her case.

What Types of Disciplinary Actions Could Be Taken?

Employers may issue two kinds of sanctions:

• Written warning
• Dismissal

Dismissals are considered a final resort and should not be the default route unless there’s gross or serious misconduct involved. Normally, dismissals must only follow from failure on the part of the employee to heed the written warnings and improve within a specified timescale.

Even then, employees should be given the right to appeal the decision provided that they’re following the company’s disciplinary procedure.

What Are Considered Fair Reasons for Dismissal?

UK employment law specifies several situations that may constitute fair reasons for dismissal. These are:

• Performance issues
• Persistent illness
• Gross misconduct
• Redundancy
• Statutory restrictions
• Physical impossibility to continue the employment relationship
• Any other substantial reason, such as a prison sentence

Any dismissal not grounded in one of these situations would be deemed an “unfair dismissal” and capable of being contested at an employment tribunal.

What Offences or Issues Could Trigger Disciplinary Actions?

Disciplinary issues that may warrant the application of corrective measures from your end can be classified as follows:

• Misconduct
• Poor performance

Let’s go over these categories in more detail.

Misconduct

You may initiate a disciplinary process for Improper behaviour, which could be severely abbreviated depending on the gravity of the action.

In most cases, you’ll be encouraged to issue written warnings before dismissal, though a direct dismissal could be acceptable if the subject engaged in “gross misconduct”, in which case you’d still have to observe fair procedure if you want to avoid problems down the road. Examples of gross misconduct range from serious insubordination to the commission of a crime (e.g., theft, assault, etc.)

Behaviours that could elicit the application of disciplinary actions include:

• Unauthorised absence or persistent lateness
• Dishonesty
• Working under the influence of alcohol or drugs
• Discrimination, bullying, or harassment towards clients and/or workmates
• Fighting
• Beach of data protection, IT, or social media policies
• Refusal to follow lawful orders and instructions
• Actions meant to tarnish the employer’s reputation

If misconduct happens outside work, as an employer, you may still exert disciplinary action if it’s shown that the employee’s behaviour damaged the company’s image or had a detrimental financial effect on the business.

Poor Performance

Performance problems could be tackled in ways that don’t automatically result in punitive actions. Depending on the extent of the problem, you could opt for motivational methods to improve the employee’s output, such as:

• Lending support or counsel during work
• Training or coaching to help hone the employee’s skills

If performance issues arise from illness and this illness is permanent, you have the option to dismiss the employee, but not before assessing ways to support him/her, either by finding alternative roles (especially if the current role is the main cause of sickness) or by giving enough time for recovery.

What Disciplinary Procedures Ought to Be Followed?

The procedures that ought to be followed are laid out in the Acas Code of Practice. If you don’t abide by the general principles outlined by that code and the employee happens to get a favourable decision from an employment tribunal, you could be liable to pay a larger sum in compensation.

For example, the tribunal may adjust the awards made in relevant cases by 25% or less if the company unreasonably failed to comply with the code. This is a very steep surcharge that you may want to be mindful of.

Alternatively, an internal procedure can be devised and inserted in the company’s handbook, provided that it aligns with the aforementioned code. This procedure should be accessible to employees so that they know what to expect when they’re notified of any concern raised by the employer.

A Guide to Creating a Disciplinary Procedure for Businesses

Acas insists on the importance of following a fair procedure. The Acas Code of Practice contains general guidelines on how a process of this nature should be carried out, but you are permitted to have a customized procedure modelled according to your workplace’s peculiar conditions.

Moreover, you may also want to check previous disciplinary records to see how similar situations have been handled so that you’re not accused of unfair or unequal treatment. You’ll need to follow the policies and procedures in the same manner for each case.

With that said, your disciplinary procedure may include the following:

• Notification
• Suspension
• The Investigation
• The Disciplinary Meeting (Disciplinary Hearing)
• The Disciplinary Decision
• Grievance Meeting

We will explain each one.

Notification

If you believe that an employee has acted in a way that merits formal admonition or dismissal, you may try first to resolve the issue informally. This could be done by scheduling meetings with the employee and looking for amicable ways to deter further actions.

Nevertheless, if you feel that the situation has stepped beyond the boundaries of a friendly resolution, you ought to inform the employee as soon as possible unless there is a justifiable fear that some of the evidence could be tampered with or destroyed, in which case you could notify after enough proof has been collected in the course of an investigation.

The notification should be handed out in writing and should contain the following mentions:

• Detailed Information about the employee’s behaviour
• The prospective consequences that may ensue (dismissal or written warning)

For this purpose, you may rely on Acas letter templates.

Even after the procedure has started, it’s always a good idea to try to enter into informal talks with the employee, provided that the situation allows. This will help prevent any drop in morale, misunderstandings, grievances, mental health issues, and costly legal actions in the near future.

After the notification has been received, the employee may either:

• File a grievance
• Resign
• Continue onward with the procedure

If the Employee Decides to Raise a Grievance

If the employee decides to raise a grievance after the procedure has been initiated, you have the ability to pause the procedure so that you can address the grievance before moving forward. You may alternatively have both procedures run in parallel if they are related.

If the Employee Wishes to Resign

If the employee submits a resignation letter in an attempt to bypass the procedure, you could still be at risk of an employment tribunal claim on the grounds of “constructive dismissal”. For this reason, it is strongly advised that you find a way to convince the employee to stay for the remainder of the process, even if you’d still wish to oust that person from your company.

Suspension

When beginning an investigation, you have the choice of suspending the employee if you feel that the business, the other employees, or the investigation’s integrity may be at risk. In that case, you must attempt to:

• Explain the reasons behind the suspension.
• Highlight how this does not create bias against the employee under investigation.
• Continue paying the employee throughout the suspension period.
• Maintain confidentiality regarding the measure.
• Periodically review the suspension and, whenever possible, lift the suspension if the conditions seem favourable for the employee’s reincorporation.
• Explain to the affected employee the limitations that he/she may have during the suspension (e.g., prohibition to contact colleagues).
• Give the employee information about the person that should be contacted for any concerns.
• Maintain constant interactions with the employee.

The Investigation

An investigation should be carried out in the most transparent manner possible to ascertain whether a case could be made against the employee or a grievance could be resolved, as well as to gather sufficient evidence.

Preparation (Investigation Plan)

A thorough investigation ensures that every party is fairly treated and gives further insight as to what you should do next. So, you must prepare

In order to carry out the pertinent inquiries, whenever possible, you should assign a neutral party, as in someone who has no involvement in the dispute. The assigned investigator could be either another manager or a member of the HR staff. If you have no other alternative, you may have to assume that function yourself.

If you have the means, you may benefit from assigning different people for each phase of the disciplinary procedure, including the hearings and appeal hearings.

A plan should be designed so as to ensure that the investigation is done smoothly and without any unreasonable delay. These are the questions that are normally expanded upon in an investigation plan:

• What is the purpose of the investigation (what is being investigated)?
• Who should carry out the investigation?
• Could the people investigating the issue give recommendations when the investigation ends?
• Who may speak about the issue or event (witness)?
• What evidence (footage, emails, work records, etc.) could be collected?
• How long could that evidence last?
• How long can the process take?
• What policies and/or guidelines ought to be followed?

Apart from these questions, the plan must also emphasize the importance of maintaining confidentiality, an aspect that’s often taken for granted in these proceedings.

How an Investigation Should Be Carried Out

During an investigation of this nature, it’s very easy to get emotional and lose sight of its ultimate purpose. This might work in the employee’s favour since he/she could allege before an employment tribunal that the employer showed bias throughout the process.

This is why you must strive to remain objective to the best of your ability, or at least make an effort to appear objective. This means that you should not go out of your way to prove the employee’s culpability but, rather, let the evidence speak for itself. Also, it bears repeating that the process should be kept confidential.

Regarding duration, investigations should not take too long, nor should they be subjected to any unreasonable delay, but they mustn’t be rushed either. Simple cases may take a day or two, whereas more complicated matters could take weeks.

How to Collect Evidence

All the evidence should be gathered according to the information laid out in the investigation plan, taking into account all the sources that can be used and the time limits that these have (some records could expire or get deleted). You can also collect evidence from other sources not specified in the investigation plan, but they must be relevant to the subject matter.

The types of audiovisual or written evidence you may obtain include:

• Paperwork
• Digital records
• Emails
• Receipts
• CCTV recordings
• Attendance records

What’s more, this evidence has to be gathered in a licit manner, meaning that it should not breach privacy or data protection laws or the provisions contained in the employment contracts or collective agreements.

In relation to witness statements, they must be taken in person during an investigation meeting, save for some specific circumstances. The statements should, nonetheless, still be recorded in writing. These written statements should contain:

• Name and job title (the latter if applicable)
• Date and location of the issues under investigation
• What they know, saw and heard
• What led them to see, hear or know about the events or issues
• Answers to specific questions brought forward by the investigator
• Current date and time, as well as signature

If the witness agrees, you or the person investigating can make an audio recording of the interview or take notes.

Investigation Meeting

Investigation meetings are meant for gathering further information from either the employee, workmates, or other witnesses such as customers.

Employees during an investigation meeting cannot legally claim the right to be accompanied – for this right is only recognised in the event of a disciplinary hearing – but you may allow it so as to maintain good practice. They may be accompanied by a trade union representative who’s certified to act as a companion, a trade union official, or a colleague.

Investigation Report

After the investigative phase has reached a closing stage, you should draft an investigation report, which should be shared with the employee. The person in charge of the investigation can also give recommendations, provided that this was agreed upon in the investigation plan.

Those recommendations will be relative to the actions that could follow, including:

• Formal disciplinary action: Disciplinary meeting (hearing), changes to procedures and policies, or further investigation into other issues that were found.
• Informal disciplinary action: Counselling, mediation, coaching, warning of future disciplinary action in case of relapse, etc.
• No further disciplinary action.

The investigation report, furthermore, should give you sufficient elements to make a decision as to whether or not to carry on with the disciplinary or grievance procedure. If there are no grounds to continue onwards, you should let the employee know.

The Disciplinary Meeting (Disciplinary Hearing)

The disciplinary meeting should be arranged as soon as the investigation ends and after it is determined that the employee has to give an account for alleged misconduct. Disciplinary meetings should be scheduled with enough time so that the employee can prepare his/her defence.

The written citation must have the following information:

• The alleged misconduct or performance problem to be addressed throughout the disciplinary hearing
• The pieces of evidence that were found during the investigation
• Any other topic that will be discussed during the meeting
• Date, time, and location of the meeting
• The employee’s right to be accompanied
• The consequences that may derive from the process

At the disciplinary hearing, you have to give a detailed explanation of the charges brought forward against the employee, sift through all the evidence, and take notes or have someone take notes for you.

Employee’s Defence

During the disciplinary hearing, the employee should be allowed to make his/her case, answer the allegations, ask any questions, bring supporting evidence, summon witnesses (prior notice), let their companion speak on his/her behalf, and make comments on the information provided in witness statements.

The employee’s companion can also set out the employee’s case and respond for the employee in some instances. Even though you’re not required to allow the companion to answer questions on behalf of the employee, you may give permission for that as well.

The Disciplinary Decision

Overview

After the hearing ends, it’s recommended that you take some time before reaching a decision. This allows the dust to settle and the case to be assessed from a better vantage point.

Any outcome should correspond to the findings of the investigation and the prescribed sanctions contained in the company’s guidelines.

If the decision does not result in dismissal, you ought to give your employee certain milestones and timeframes to show improvements. If the situation does not improve, you must repeat the disciplinary procedure and perhaps consider issuing a dismissal letter.

As disclosed above, you can decide to take these formal disciplinary actions:

• Written warning
• Dismissal

Aside from these two, you could also:

• Desist from any disciplinary actions
• Issue an informal warning if the misconduct or performance problem was not grave enough to warrant formal disciplinary action. This is sometimes called “verbal warning”, though it could be put into writing.

Let’s now take a deeper look at the formal disciplinary actions mentioned above.

Written Warning

Written warnings are formal warnings that, while not meant to put an end to the employment relationship, set a precedent for any future disciplinary actions. Normally, two written warnings (first and final written warning) should be issued before resorting to a dismissal, which is the ultima ratio in a disciplinary case.

After a first written warning is given, you may give a final written warning if, within a set timeframe, the employee does not improve, recidivates, or commits another offence. The final warning may be given without any prior action if the misbehaviour or performance issue is serious and has caused considerable damage to the company.

Dismissal

Dismissal letters may be issued in these cases:

• Gross misconduct
• Procedures that were preceded by a final written warning.

Dismissals can only be decided by a person with authority to do so according to the company’s policies.

The letter should contain:

• The motivations behind the dismissal
• The end date of the employment contract and notice period
• The employee’s right to appeal the decision if it was too severe or the procedure was wrong at any point.

Grievance Meeting

When it comes to grievance meetings, they normally should be scheduled roughly within five working days from the date that the formal grievance was raised by the employee.

The conditions are almost the same as with disciplinary meetings, but the employee’s right to be accompanied is to be upheld only insofar as the issue is of a legal or contractual nature. Furthermore, the employee is in charge of exposing the reasons behind the grievance and showing all the evidence.

You or the person tasked with conducting the meeting should remain impartial and take notes or appoint someone else to do so.

Where Should Disciplinary and Grievance Procedures be Documented?

Understanding the Differences

Disciplinary and grievance procedures are commonly mentioned in the same paragraph, though these are two different practices. Paraphrasing the Acas code, these formal procedures are defined as follows:

• Disciplinary procedures apply to misconduct or performance issues on the part of the employee.
• Grievance procedures relate to complaints raised by employees with their employers and should also be conducted by the latter in writing.

Disciplinary Actions

The disciplinary procedure should be clearly put in writing, making explicit reference to:

• The disciplinary procedure rules
• The offences that could prompt disciplinary measures
• The actions that you may take against employees, as well as their right to appeal your decision.

As said earlier, the procedure must be contained in an instrument that’s easily accessible by the employee, such as the statement of employment, the staff handbook, or the employment contract itself. The rules must also point to the person who’s in charge of receiving and handling appeals.

Grievance

Grievance procedures should be contained in:

• The employment contract
• The company’s handbook
• HR or personnel manual
• HR intranet site

On another note, these are the steps that you must follow in the event of a grievance:

• The employee should write a letter detailing the complaint
• A meeting should be scheduled in order to discuss the problem
• Whatever decision you make should be capable of being appealed by the affected employee.

How We Can Help

Our solicitors at IAS Law are fully prepared to help you comply with UK employment law in matters related to grievances or disciplinary actions. Our team has ample experience dealing with all the intricacies that relate to legal conflicts in the workplace and, particularly, those between employers and employees.

We can help you throughout all phases of a disciplinary process so that you leave no loose ends as you reach a decision. We are more than happy to assist you in these matters so that any chance of unfair or wrongful dismissal claims may be thwarted before they even have the opportunity to arise.

Call us on 03334149244 to find out more about our services.