One of the most frustrating things for employers is to find themselves at an Employment Tribunal in circumstances where the substance of the way in which they have acted is reasonable but they have fallen foul of correct procedure when dealing with disciplinary and grievance matters.
In other words, procedural compliance and fairness is very important with employment law.
Ensuring that your employment contracts, policies and procedures are regularly reviewed and updated and that you follow your procedures also has the advantage of conveying the right message to your employees, that you are consistent and fair in your approach, and so they know where they stand. This approach tends to assist in preventing escalation of employment related problems.
There are also practical consequences of failing to have consistent disciplinary policies and procedures, generally communicated to all staff in written procedures, which are then consistently applied. Badly handled disciplinary procedures and issues result in many employment tribunal claims every year including for breach of contract, unfair dismissal and discrimination. In particular, employers written disciplinary policies and procedures must, as a minimum comply with statutory dispute resolution and employers are well advised to also pay close attention to the ACAS code of practice. Some basic points from the statutory procedures are:
An employer should follow a proper disciplinary process if it believes that an employee may be guilty of misconduct, which can be broken down into misconduct and potentially gross misconduct. There should be an investigation into the suspected misconduct and generally it is a question of common sense as to what constitutes misconduct, based on whether a reasonable employer would consider it to be such.
If an employee is underperforming at work this is generally termed a capability issue and disciplinary action will rarely be appropriate. Instead, the employee should be taken through a capability process designed to improve performance.
Similarly, absence due to ill health is not a disciplinary offence, unless the employer has some evidence that the employee is malingering, and the employer should follow an absence management process, rather than disciplining an employee who has been absent from work.
If, after investigation, it is decided that a disciplinary hearing is required, this should be arranged promptly but giving the employee proper time to prepare. The employer should appoint a senior employee to act as the Chairman of the hearing. If at all possible, the Chairman should be someone who has not been involved with the underlying circumstances and not been the investigator.
The employer should write to the employee requiring him/her to attend the hearing and providing:
The employee should be advised that they can present their own evidence but should prepare this and send it to the Chairman in good time before the hearing.
How can Darlingtons help ?
We are highly experienced in advising on all aspects of disciplinary and grievance issues, including :-
Get in touch if you need any legal advice on employment disciplinary situations.
It is imperative to objectively and thoroughly investigate a potential issue which made lead to formal disciplinary process. The investigation needs to be carefully handled. Witnesses may be required and if so, formal witness statements should be obtained and the witness should be asked to sign and date every page and there should be no pressure or undue influence.
Investigations relating to absences from work, persistent short term or long term, are particularly sensitive. the employer needs to try and find out what is going on, but must be very careful not to harass the employee or breach confidentiality. If malingering is suspected, surveillance can be lawful but must be carried out in the right way. Often, evidence which may support disciplinary action may be on a computer or other electronic device.
This is another area where the employee may also have rights, so employers need to tread carefully and any evidence stored digitally must be extracted and preserved in a lawful manner. In short, employers should remain aware that the way an internal investigation is conducted may be tested later at an Employment Tribunal or Court.
We are experienced in advising on investigating disciplinary allegations – we can help obtaining the evidence and advise on legal issues and concerns of the type described above. Get in touch to discuss your situation.
It is important to strike a balance between carefully thinking through your approach to what is acceptable or not by way of employee conduct or performance and to be clear and transparent about this whilst at the same time not boxing yourself into a corner and giving yourself a degree of discretion.
Some types of conduct easily lend themselves to a potential finding of gross misconduct, such as theft, fighting in the workplace and so on, but others are not so clear but have become increasingly important to most employers. A good example of this would be use of internet and social media t work, what employees are allowed to say about the employer online and keeping the employer’s information confidential. these might be areas where a clear policy on the seriousness and possible sanctions for breach may be included in a disciplinary process.
However, every disciplinary process should include :-