Employee disciplinary legal advice.

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Employment disciplinary legal advice

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.

Check employment contracts and policies

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:

  • they apply to all employees, regardless of their length of service.
  • if an employer already has its own internal disciplinary procedure, it will be expected to follow that procedure as well as any additional requirements of the statutory procedures.

Grounds for formal disciplining of an employee?

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.

Underperformance or ill health absences

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.

Correct procedure for a disciplinary hearing

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:

  • full details of the allegations and why the conduct, if proven would be unacceptable, what will happen at the hearing, making it clear that the hearing is a disciplinary hearing and that depending upon the outcome of the hearing, disciplinary action may follow;
  • the date, time and place of the hearing;
  • an offer to rearrange the date, time and place of the hearing if it is not suitable to the employee;
  • details of who will be present and what their function will be, including details of who the company will be calling as witnesses;
  • confirmation that the employee is entitled to be accompanied at the hearing by a fellow worker or trade union official;
  • confirmation that if the employee intends to have fellow employees as witnesses, they will be given reasonable time off work to attend the hearing;
  • any relevant evidence, including witness statements from company employees; and
  • an assurance that no conclusions have been reached or will be reached until the hearing has taken place.

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 :-

  • drafting appropriate discipline and grievance policies suitable for your business.
  • ensuring you and your staff understand the policies (vital and often overlooked).
  • reviewing and updating policies (again, often overlooked but very important).
  • training you or your management team on how to deal with issues in practice.
  • advising and assisting with investigating disciplinary or grievance issues.
  • acting as an external resource to ensure you don’t make a procedural mistake.
  • we often help employers, especially small businesses, with appeals – we can deal with the appeal if there is no-one suitable or experienced enough internally and employees may be more accepting of a decision from an external and impartial decision maker.
  • we advise on claims for unfair dismissal or discrimination where an employee makes a claim following dismissal, sanction or where he or she is not satisfied with the outcome of a grievance raised.

 Get in touch if you need any legal advice on employment disciplinary situations. 

Internal investigation of potential disciplinary issue

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. 

Key aspects of an employee disciplinary policy

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 :-

  • investigating the issues thoroughly and objectively
  • if the employee is to be the subject of formal disciplinary process, communicate this in writing to the employee with reasonable notice before a hearing and offering some information about the reason for the meeting
    allow the employee to attend and out forward his or her side of events and to be accompanied by a colleague or Trade Union Rep.
  • the right of appeal against any sanction.
  • Dealing with employee grievances.