The disciplinary procedure is the formal procedure employers can use to manage:
- Inappropriate or unacceptable behaviour (conduct)
- Performance below expected standards (capability)
Where possible and appropriate, prior to using the formal disciplinary procedure, employers should seek to resolve issues informally. In most cases minor issues are resolved by speaking with the individual or by issuing a letter of concern.
The disciplinary procedure should be used where informal methods have not worked or where the issue is so serious that it would be inappropriate to deal with it informally.
Employers are required to follow a fair procedure. At a minimum this should follow the ACAS Code of Practice on Disciplinary and Grievance Procedures. Although there is no statutory requirement to follow the ACAS Code, an employment tribunal will consider whether this has been followed in a fair way.
Dealing with Capability
It is expected that where the issue is the employee’s capability to do the job, the employer will attempt to resolve the issue with training and support to improve. Where this is not possible the disciplinary procedure should be used.
Some employers choose to have a separate capability procedure based on the ACAS code of disciplinary and grievance procedures.
What is Misconduct?
Employees should be made aware of what constitutes misconduct in your workplace as it may vary from organisation to organisation and almost certainly between industries.
Examples of misconduct include:
- Persistent lateness
- Refusing to do work
An Employee Handbook or Policies will detail what is and isn’t acceptable behaviour, including the difference between misconduct and gross misconduct.
Examples of gross misconduct include:
- Theft and fraud
- Physical violence
- Being under the influence of drugs or alcohol at work
Prior to any formal disciplinary hearing the employer must conduct a full and thorough investigation.
The aim of the investigation is to gather evidence, find out if there is a case to answer and to guide decisions about next steps. The investigation may result in the employer deciding to deal with the matter informally.
The investigation should be carried out by someone who is not involved in the case. This can be an external investigator, such as Silk Helix.
Do we need to suspend?
The default position should be to avoid suspending whilst an employee is under disciplinary investigation.
Suspension should only be considered if the employer reasonably believes they need to protect:
- the investigation
- the business
- other employees
- the employee under investigation
Where possible alternatives to suspension should be considered such as moving to another part of the business or working under supervision. Where this is not possible and there are no other alternatives then suspension may need to be used.
Always seek specific advice before making a decision to suspend.
If as a result of the investigation it is decided that there is a case to answer, the employee should be asked to attend a disciplinary hearing.
The disciplinary hearing should be held by someone different to the person who conducted the investigation.
The request to attend the disciplinary hearing must be made in writing including details of the possible outcomes.
The employee has the right to be accompanied by a colleague or trade union representative. Employees can opt to bring a trade union representative even when the employer does not recognise trade unions.
During the disciplinary hearing the employer should go through the evidence and give the employee the chance to state their case. Once the employer has a full understanding of the case and any representations from the employee the meeting should be adjourned for the employer to make a decision.
The case should be considered carefully before making a decision. It is a good idea to seek advice at this stage prior to making a decision. The outcome must be shared with the employee in writing.
Outcomes of the disciplinary hearing could be:
- Informal warning - if the matter was found to be not serious
- First written warning - normally the first step taken with misconduct or poor performance
- Final written warning - if a first written warning has already been issued and the misconduct or poor performance is repeated, the employer can move to a final written warning - a final written warning may be issued as a first stage for a more serious matter
- Dismissal with notice - If a final written warning has been issued and the misconduct or poor performance is repeated the employer can move to dismissal with notice - it is unlikely dismissal with notice would be a first step
- Summary Dismissal - where the matter is gross misconduct, the employee can be dismissed without notice, even for a first offence
Outcomes could also include things like retraining to support the employee to avoid the situation again.
The employer should give the right of appeal to the employee.
The employee can appeal if they feel the outcome is too severe or the procedure was not followed fairly.
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Article last updated: 21 November 2022
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