Disciplinary Proceedings

It is vital that employers know how to discipline employees fairly and consistently, as failure to follow correct disciplinary procedure can result in employment law liability even if there is substance to the employer’s concerns regarding employee misconduct.

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 procedures which came into force in October 2004 (“the statutory procedures”) 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.

What circumstances may be used to discipline 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.

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.

What is the 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 Chairman 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.

Please telephone us now or complete our disciplinary proceedings advice enquiry form.