Setting standards of conduct within employment and having a fair procedure when employees fall short of those standards is important. Your employees will value knowing what is expected of them and that you as an employer will act reasonably. Having a procedure and following it will help you to ensure any resulting dismissals are fair.
Employers are expected to have regard for the ACAS Code of Practice when dealing with a disciplinary. Whilst failure to follow the code does not automatically make a dismissal unfair the tribunal will consider the ACAS code and may increase tribunal awards where the employer has unreasonably failed to comply with the code.
All employers are required to have a disciplinary procedure and provide a copy to employees. All employees are entitled to a statement of particulars which must inform the employee where the full disciplinary procedure can be found. This must be issued to new starters by the end of their first day.
Prior to any disciplinary hearing an investigation should be conducted. In most cases this will involve an investigation meeting with the employee, allowing the employee to state their case and respond to the allegations made.
Where the allegation is one of misconduct (rather than capability) the investigation should be carried out by a different person to the person doing the disciplinary hearing. This can be more challenging in small organisations with flat hierarchies, however, every effort should be made to explore the options for different people to be involved.
The investigation should seek clarity as to the allegations, any ambiguity about the alleged actions should be resolved by further investigation prior to moving onto a disciplinary hearing.
It may be necessary to suspend the employee in certain circumstances. Any period of suspension should be as brief as possible and should be kept under review. The decision to suspend should be confirmed in writing and the employee informed that the act of suspension itself is not considered a disciplinary action. Suspension is not without risk, if you believe there is a need to suspend an employee then call for specific advice.
Any disciplinary hearing should follow the principles of a fair hearing and allow employees the opportunity to state their case and respond to allegations made.
The employee must be made aware in writing of the allegations against them, they should be clear, detailed and unambiguous and provided in enough time prior to the hearing for the employee to prepare.
There is a balance between providing enough time for the employee to prepare their case and holding the hearing without unreasonable delay. In most cases 24 hours notice is sufficient of a disciplinary hearing however this will depend upon the complexity and amount of evidence to be considered.
Confirmation of the requirement to attend a disciplinary hearing must be set out in writing, including the venue, time, date and names/roles of the people involved. The letter should remind the employee of their right to be accompanied by either a work colleague or an accredited Trade Union official. This right applies even if your company does not recognise a Trade Union or the employee is not a member of a Trade Union.
If the potential outcome of the disciplinary hearing is dismissal, for example where the allegation amounts of Gross Misconduct or it is an escalation of a Final Written Warning this must be stated in the letter.
Once you have heard the case in full, adjourn the meeting for a reasonable period to consider all the evidence carefully prior to making a decision. Weigh the evidence, consider it’s worth and relevance to the allegations. Is there sufficient evidence for a reasonable and genuine belief the employee’s culpability.
When deciding on the sanction this must be reasonable given all the circumstances, including any mitigation. You should ensure than any decision is consistent with other sanctions within the organisation. Consistency is vital, this does not mean the same outcome in every case as each case will depend on its own facts, however, if the outcome is different from another similar case you must be able to show why and have reasonable grounds for that difference.
The outcome must be confirmed in writing, this should be done to follow up verbal delivery of the outcome. The letter confirming the outcome must confirm the right to appeal.
You should have an appeal procedure outlining who has authority to hear an appeal and the time frame within which an employee should bring an appeal.
Where possible the appeal should be heard by someone who has had no prior involvement in the disciplinary proceedings (including investigation and suspension). Ideally the appeal will be heard by a more senior manager and in all cases must be someone who has the authority to overturn the decision made at the disciplinary hearing.
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Article last updated: 25 July 2020
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