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Disciplinary action against an employee

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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 before starting disciplinary action

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 disciplinary action against 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.

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 write to the employee requiring him/her to attend the hearing and providing full details so that the employee can understand the allegations made, information about any witnesses and the employee’s rights in relation to the hearing, such as being able to prepare evidence,ask for witnesses and be accompanied in certain limited circumstances.

How can employment lawyers help with disciplinary investigations and actions?

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 disciplinary and grievance policies (again, often overlooked but very important).
  • training you or your management team on how to deal with disciplinaries and grievances 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.

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

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