The “ACAS code of practice on disciplinary and grievance procedures”, is the basis for handling disciplinary procedures. Whilst the ACAS code is only a guide, the employment tribunal will expect that employers follow it and it’s important to take advice on your specific situation as this guide cannot cover every possibility.
Importance of Acting Promptly
Acting promptly is crucial to deal with any misconduct on the part of your employees. A failure to communicate to an employee that something they have done is unacceptable may lead the employee to assume that their conduct is satisfactory. This will make it much more difficult for you to deal effectively with the problem behaviour, which may get worse, at a later time.
Is it Conduct or Capability?
Misconduct is any type of behaviour or conduct at work that falls below the standard required by the employer or is in breach of any company policy or rule. It is the agreed standard, policy or rule that is relevant, rather than a manager’s subjective opinion.
Lack of capability, on the other hand, exists where, no matter how hard an employee tries, they are simply unable to perform the job to the standard required by the employer. If, however, an employee fails to come up to the required standard as a result of their own carelessness, negligence or lack of effort, this could be regarded as misconduct because such behaviour is within the employee’s control.
Informal approach to tackling misconduct
As a first step in tackling unsatisfactory behaviour or in the event of a minor breach of the employer’s rules, you should hold an informal meeting with the employee to make them aware of how and why the behaviour in question is causing a problem.
The joint aim of the meeting will be to ensure that the employee understands why their conduct is unacceptable and to seek agreement on making sure that the behaviour does not continue or recur.
Despite the fact that the discussion is informal, you should set a date to review the employee’s progress and keep a record of the meeting. The record should show the date and time of the meeting, state briefly what was discussed and record the fact that there was no formal outcome.
Formal Disciplinary rules and procedures
If one or perhaps two informal warnings have not produced an improvement in the employee’s conduct, there will be little point in continuing with informal action. You will need to move up a gear to formal action. In more serious cases you may go straight to formal action.
All employers, irrespective of size or industry sector, are required to include within the [written statement of terms and conditions of employment] (/knowledge/what-do-employment-contracts-contain/) a note specifying any disciplinary rules and procedures applicable to them, or referring them to a document (such as the Employee Handbook) setting out these rules and procedures.
Disciplinary rules are useful because they set standards and make it clear to employees what conduct is and is not acceptable.
It is critical that employees know the rules and can refer to them. Keeping them all in one place such as in an Employee Handbook or a company Wikki helps to ensure everyone knows the rules.
The first step in any formal procedure will be for you to arrange an investigation into the employee’s conduct. Where practicable, the investigation and any subsequent disciplinary hearing should be carried out by different people.
Investigation may include checking whether or not the employee has previously received any formal warnings and if these are still in date, talking to other managers who may have knowledge of the employee’s alleged misconduct, or interviewing possible witnesses to the alleged misconduct.
Depending on the circumstances, it may be necessary to suspend the employee with pay for a short time while the investigation takes place. The employee should, however, be informed that the suspension is not a disciplinary sanction and does not involve any prejudgment.
If the investigation indicates that there is a disciplinary case to answer, the next step will be for you to write to the employee requiring them to attend a disciplinary hearing, giving the employee reasonable notice and informing them of the right to be accompanied at the hearing.
Workers are entitled in law to be accompanied, if they wish, at any formal disciplinary hearing by either a fellow worker or a trade union official of their choice.
You should give adequate details of the alleged misconduct and its possible consequences to enable the employee to prepare to answer the case at the disciplinary hearing. Copies of written evidence, including witness statements, should be included with the notification.
The disciplinary hearing should be held by someone different from the person who did the investigation.
At the hearing itself, it will be important for the employee to be given a full and fair hearing. The employee should have a full opportunity to put forward their version of events and any mitigating factors or explanation.
At the end of the hearing, you should summarise what has been discussed and then adjourn before reaching any conclusion about what, if any, formal disciplinary action to take.
The outcome - for example a written warning - should subsequently be communicated to the employee, first verbally and then in writing.
All disciplinary hearings should be held in private and it is important to remember that the employee has the right to be treated with courtesy and respect, irrespective of what they are alleged to have done.
Gross misconduct is misconduct of such a serious nature that it fundamentally breaches the contractual relationship between the employee and the organisation. In the event that an employee commits an act of gross misconduct, the employer will be entitled to dismiss the employee summarily. A Summary dismissal simply means a dismissal without notice. It does not mean dismissal without following a process, it is important to follow the disciplinary procedure fully, an outcome should not be considered prior to the disciplinary hearing.
Full records should always be kept of all meetings held with employees about their conduct, whether they are formal or informal, as well as the meeting outcomes, for example any warnings given. The records will be necessary in case further misconduct occurs or the employee fails to change their behaviour despite the measures taken. They will also allow you to follow through the further stages of the disciplinary procedure at a later date if necessary.
In line with the General Data Protection Regulation (GDPR), these records should be held confidentially and kept for no longer than necessary. In some cases, data collected may include special categories of data (e.g. information about an employee’s health), in which case more stringent rules apply. You should seek further advice about your duties under the GDPR.
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Article last updated: 2 October 2023
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