Disciplinaries at Work – General

Dismissal from Work
July 4, 2016
Disciplinaries at Work – Investigations
July 4, 2016
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There are two main areas where a disciplinary system may be used: ipdapability/performance and conduct.

Capability/performance

Capability issues may arise because an employee doesn’t have adequate training, or is just unable to do the work to a satisfactory standard for another reason. An employer must try to identify the reason and give appropriate support, before invoking a formal procedure.
Situations where an individual is unable to do their job because of ill-health may also fall into this category. In these instances an employee should be dealt with sympathetically and offered support. However, unacceptable levels of absence could still result in the employer making use of warnings.

Conduct

Employee misconduct could range from continued lateness, failure to follow a reasonable management instruction, abuse of the organisation’s computer system or Internet access, bullying behaviour or creating a hostile work environment, through to theft, fighting and committing criminal offences. The more serious offences may constitute gross misconduct. In all cases, an employer should follow the recommendations in the Acas Code.

Stages of the process

If disciplinary action is to be taken, it should usually have at least three main stages:

  • a letter
  • a meeting
  • an appeal.

There must always be a full and fair investigation to determine the facts and to decide if further action is necessary.


Record-keeping

Employers should keep meticulous records, as they will be vital should a case go to an employment tribunal. The type of records to keep are: minutes of meetings, emails, attendance notes, notes of telephone calls, copies of correspondence, and so on.

Handling disciplinary interviews

All line managers should be trained and supported so that they’re able to carry out disciplinary meetings with their teams. The HR department should be able to advise them on relevant legislation and on preparing for and conducting the interview.

An individual is entitled to be accompanied by a work colleague or trade union official at formal disciplinary and grievance interviews. It’s good practice for an employer also to offer this at any purely investigatory meeting. Employers don’t usually have to allow other companions (for example family members or lawyers) but may do so if they wish.


Key recommendations:

  1. Ensure all the facts are investigated in advance, including consulting the individual’s personal file for relevant information, and plan how to approach the meeting.
  2. Make sure the letter inviting the employee to the meeting says why they’ve been asked to attend and states that they’re entitled to have a companion present.
  3. Give the individual reasonable notice, ideally more than 72 hours.
  4. Before the meeting, provide appropriate statements from people involved, together with any key information the employer intends to rely on.
  5. Make sure another member of management can be there to take detailed notes and help conduct the interview.
  6. Never pre-judge the outcome of the interview before hearing the employee’s perspective.
  7. Start the interview by stating the complaint to the employee and referring to appropriate statements from people involved.
  8. Give the employee plenty of opportunity to put forward their side of the story and call any supporting witnesses.
  9. Employers can also call witnesses, but they can only be in the room for the relevant part of the interview – not the duration.
  10. Make use of adjournments; always take a break to consider and obtain any necessary extra information before reaching a decision. Adjournments can be especially useful if things become heated or people are upset during the interview.
  11. Deliver the decision (and give reasons, taking into account any mitigating circumstances), confirm review periods and ensure you give details of how to appeal.
  12. Confirm the decision in writing.

Ensure everyone involved in conducting the disciplinary action understands the importance of following the correct procedure, as even if the case against an employee seems proven, they can still be deemed to have been treated unfairly if the correct procedures aren’t followed.


Potential outcomes

No action
After the meeting, the employer may decide that no action is necessary. For example, if an employee was unclear about what was expected from them and they agree to try to resolve the issue via additional support or counselling.

Warnings
Alternatively, the employer may decide to give the employee a warning. An organisation’s policy should outline exactly which warnings will be given. Here are some examples of warnings an organisation may use:

  • verbal/oral warning (Acas no longer recommends this stage as part of a formal procedure but, for cases of minor misconduct, this will often be a reasonable method to prevent a problem from escalating)
  • first written warning/improvement notice
  • final written warning.

Employers should specify a ‘life’ for formal disciplinary warnings after which they are disregarded for disciplinary purposes. Typical timescales suggested in the Acas non-statutory guidance for the types of warning are:

  • first written warning – 6 months
  • final written warning – 1 year.

It may be appropriate for a warning to continue to be regarded for a longer period, provided the timescale was specified in the organisation’s disciplinary policy from the outset. The time period employers select for warnings to remain current, and the penalties imposed, must be reasonable in all the circumstances. For example, they must take into account the nature of the misconduct, the employee’s disciplinary record and be consistent with penalties imposed in similar cases.

Dismissal
There are currently five potentially fair reasons for dismissal:

  1. capability or qualifications
  2. conduct
  3. illegality or contravention of a statutory duty
  4. some other substantial reason
  5. redundancy

Employers need to be sure that any decision to dismiss an employee will be seen as ‘reasonable’ by an employment tribunal. The employer must follow the Acas Code before any dismissal and also have been fair overall, for example by complying with internal procedures, treating employees consistently and carrying out a proper investigation.

If, despite the employer’s efforts, a tribunal claim follows the dismissal, then both parties must attempt to resolve the dispute by early conciliation using Acas or some other means of dispute resolution. The parties may also enter into a settlement agreement.

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