It is essential that correct procedures are followed in formal disciplinary processes, particularly if these may ultimately result in an employee's dismissal. There are minimum standards which apply to all businesses (regardless of size) in terms of Disciplinary and Grievance procedures. A failure to meet these standards in a dismissal situation is likely to be considered to constitute automatic unfair dismissal by an Employment Tribunal. Reference should also be made to the ACAS Code of Practice on disciplinary and grievance procedures.
Handling the disciplinary matter
Cases of minor misconduct or unsatisfactory performance are usually best dealt with informally. Counselling may often be a more viable approach when dealing with a breach of rules, or poor performance than a disciplinary meeting and should manifest itself in the form of a constructive discussion with the objective of encouraging and helping the employee to improve. It is advisable to retain any notes made in these discussions for reference purposes.
Issues tackled promptly usually prove to be less acrimonious than if left unmanaged, as the employee may have little idea that he or she is performing below the acceptable standard. By communicating with the employee sooner rather than later, the matter may be resolved in an informal manner and away from the harsher focus of the disciplinary process.
However, if the problem is not able to be dealt with informally the a formal dispute resolution procedure will need to be followed, the important procedural steps to take are:
Investigate the matter thoroughly and collate written evidence into a 'bundle' that can be referred to at the disciplinary meeting. Ensure as far as is practicably possible that whoever conducts the investigation is someone who will not be involved in the disciplinary decision (the 'investigating officer' should not also be 'judge' and 'jury'). If appropriate obtain written witness statements, these should be signed and dated.
Write to the employee
The employer must put the reasons why they are considering taking disciplinary action against the employee or his or her dismissal in writing. The letter should specify the complaints against the employee, the date, time and location of the meeting, possible sanctions to be considered if the complaints are upheld and inform the employee of his or her right to be accompanied at the meeting by a work colleague of his or her choice or a Trade Union official.
Hold a meeting
The employer should hold a meeting to discuss the problem - A meeting should be arranged for the employer and employee. A reasonable time period should be allowed prior to the meeting to allow both parties to consider the facts surrounding the disciplinary matter. After this meeting has taken place the employer must inform the employee of their decision and respect the employee's right to appeal any decision that has been made;
Allow an appeal
The employee must be given the right to appeal against the outcome of a disciplinary meeting. Any appeal should be held as a complete re-hearing of the original disciplinary meeting; this will allow for any procedural deficiencies in the first meeting to be corrected. The letter confirming the arrangements for the appeal meeting should state that it will be treated as a complete rehearing. Appeals should ideally be heard by a more senior manager than that who heard the original disciplinary meeting; where this is not practicable it is worth considering the appointment of an external, approriately qualified individual to hear the appeal. The employee should again be given the right to be accompanied at his or her appeal. The employer must give the outcome of any appeal to the employee in writing.
The formal disciplinary and grievance procedures must be referred to and specified within the written statement of employment, contracts of employment and employee handbook. Sample contracts and policy documents may be downloaded free of charge from the documents section of this website.
Further guidlines on handling a disciplinary procedure
The handling of a formal disciplinary issue should be conducted carefully to ensure that correct procedure is followed to the letter. Relevant statements should be obtained from witnesses as soon as can be arranged and is practicable. Maintaining records of what is said before, during and after the procedure is important as copies may need to be provided to the employee at a later stage. These notes and minutes should be dated and timestamped. Any relevant personal details, records and documents, such as absence records, length of service or any current warnings should be gathered prior to a disciplinary meeting.
In cases of serious misconduct, or risk to other people, a temporary period of suspension with pay may be considered while the case is being investigated, provided that the employee's contract of employment allows for such a suspension. For the process to be considered fair, the employee must be informed precisely as to why he or she is being suspended, that the period pf suspension will be kept as short as possible and that a meeting will be convened as soon as possible. It is not advisable to use suspension as a 'scare tactic' prior to the disciplinary hearing and decision. Once all the facts are assimilated, a decision should be made as to whether to drop the investigation, arrange counselling and take informal action or to proceed to a formal disciplinary hearing. As part of this consideration it is important to decide whether the problem is one of 'capability', 'conduct' or 'some other substantial reason'. If the dissatisfaction arises from a 'capability' issue, appraisal data, training records and the reasonableness of job objectives should be reviewed and assessed.
Key points to remember when handling a disciplinary matter are:
The aim of disciplinary action should be to encourage an unsatisfactory employee to improve - proceedings should therefore be handled with due care and consideration;
The matter should be dealt with promptly and all relevant facts investigated and considered;
A brief period of suspension on full pay may be advisable in particular cases - this enables the employer to fully investigate the matter and also allows the employee to consider his or her response to any complaints against him or her. However, the decision to suspend an employee should not be taken lightly and the grounds for such a suspension should be reasonable; in the interests of Health & Safety or where the employee's attendance at work may prejudice the investigation for example. It should be made clear to the employee that any suspension should not be considered to be a disciplinary sanction in its own right;
Disciplinary hearings should be unbiased, fair and consistent - their objective should be to confirm facts not to be a pre-cursor to any pre-determined disciplinary action - such action should only be decided upon after the meeting;
Each case should be considered purely on its merits. Rash or spontaneous decisions should be avoided;
Care must be taken to ensure no discrimination occurs on grounds of any protected characteristic;
The disciplinary procedure should be followed in all cases where formal disciplinary action is likely to be taken;
If the employer fails to follow the correct procedure (explanation, meeting and appeal), the dismissal is likely to be found to be automatically unfair. In such circumstances the employee will be entitled to a minimum of four weeks pay and any additional compensation awarded by a Tribunal may be increased by a maximum of 25%.
Training and coaching should be offered as needed with periodic reviews over an agreed period of time whilst acknowledging to the employee that no improvement would result in the initiation of further formal disciplinary action. Any agreed action plan should be specified in writing.
Where a disciplinary procedure is initiated that subsequently leads to a disciplinary meeting, employees have the right to be accompanied by a person of their choice such as a Trade Union representative or a work colleague of their choice. There is no legal duty on Trade Union officials or fellow workers to perform the role of the 'companion'. The 'companion' is entitled to make a statement at the hearing, ask questions and discuss matters with the employee but is not entitled to answer questions on the employee's behalf. Should the 'companion' not be available to attend at the stipulated time, the employer will be expected to postpone the hearing to a more convenient time, provided it is reasonable and is within a 5 working days period.
Ensure that any witnesses are able to attend the meeting. If the witness is external to the organisation and is unable to attend the meeting the employer should try to obtain a written statement. It is best to ensure that the organisation has fully prepared for the meeting in terms of gathering all facts and paperwork. This includes taking witness statements, carefully planning an agenda for the meeting and ensuring all key points are covered. It is also important to provide the employee with any documentary evidence and witness statements in good time before the meeting to allow him or her to prepare properly.
Tips on conducting the meeting
Start the hearing by introducing those present and explain the reason for their presence to the employee;
Outline the purpose of the hearing and how it will be conducted. Make it clear that the hearing will be a two way process with input from both parties being both necessary and meriting equal weight;
Present the nature of the complaint along with substantiated evidence to the employee;
Seek confirmation from the employee that he or she agrees with the facts and evidence;
Give the employee the opportunity to present his or her case by challenging the complaint, calling witnesses and presenting his or her evidence. The employee should also explain any 'mitigating circumstances' that may have compounded or influenced the matter. The 'companion' can also play an active role in the hearing by asking questions and conferring with the employee (in private if he or she or the employee so wish);
If a witness has not been able to attend and it is clear that his or her evidence will not affect the material substance of the complaint consider continuing with the hearing; Where a grievance is raised about the behaviour of the manager handling the case it may be sensible to consider the grievance initially before continuing with the disciplinary hearing;
If necessary, replace the manager with another to deal with the disciplinary case - if the manager is a key witness or the initiator of the complaint it is also advisable for the hearing to be conducted by another manager of similar or greater seniority; Where it is clear that further investigation is needed and is requested by either the Company or the employee or his or her representative, adjourn the hearing until a later time or date;
If it becomes apparent that the worker has provided an adequate explanation or there is no real evidence to support the allegation, stop the proceedings;
Ensure questions are used appropriately: open-ended questions will obtain the 'big picture' whilst precise, closed questions will extract specific information;
Very importantly, do not get caught in a verbal 'slanging match' and do not make personal or humiliating remarks. Restrain from any physical contact or gestures which could be misinterpreted or misconstrued;
- Where people are upset or even angry, it is a sound idea that a second member of management, and the employee's representative are present wherever possible. Where this is the case, the parties should be given time to regain composure. It may be the case that the Company has to reconvene if the distress is too great to continue. However, if the conduct verges on the abusive in terms of language or behaviour, this in itself may be construed as misconduct in its own right and may warrant disciplinary action. In this instance is best to adjourn and convene a later meeting, when both issues can be considered together.
Summing up and adjournment
Following the questioning round, summarise the key points of the hearing to ensure that all parties are clear on the nature of the complaint, the arguments and the evidence presented. Ask whether the employee feels that he or she has had a fair hearing, and whether they have anything further to add. Adjourn prior to making a decision. This allows time to reflect on the proceedings.
Points to consider before deciding upon the disciplinary outcome and sanction
The person deciding upon the outcome of the meeting should apply these three 'tests':
- Is there a reasonable belief that the complaints took place?
- Are there reasonable grounds upon which this belief is based?
- Have these grounds been subjected to a reasonable investigation?
It should be noted that these tests are based upon 'reasonable belief''which is a less rigorous test then 'beyond reasonable doubt' which is required in a criminal case.
In deciding upon the level of sanction to impose if the complaints are upheld it is important to consider:
The sanction imposed in similar cases in the past and any special circumstances that might mitigate the severity of the sanction;
The employee's disciplinary record and general work record, work experience, position and length of service;
Whether the proposed penalty is a reasonable response in view of all the circumstances.
Each case must be reviewed on its own merits and any relevant circumstances taken into account. The latter may include health or domestic problems, provocation, ignorance of the rule involved or inconsistent treatment in the past.
If there is any uncertainty about what disciplinary sanction to impose, consult other managers who have instigated similar disciplinary action in the past. Such advice should not be taken from anyone who may be involved in hearing any potential appeal.
The employee should be informed as soon as possible of the outcome of the meeting and the reasons for it. Details of any disciplinary sanction should be given in writing to the worker as soon as the decision is made and a copy of this notification held on file by the employer. Employers are required by law to present, within 14 days of its request by an employee who has one year's service or more, a 'written statement of reasons for dismissal'. A woman dismissed during pregnancy or maternity leave is automatically entitled to the written statement without having to request it, irrespective of length of service. The written statement can be used in evidence in any subsequent proceedings, for example in the event of a complaint to an Employment Tribunal of unfair dismissal.
Warnings in respect of poor performance
Warnings given in respect of unsatisfactory performance should contain the following:
An explanation of the performance problem;
The improvement that is required;
The timescale for achieving this improvement;
A review date; and
Any support the employer will provide to assist the worker.
Time limits for warnings
Disciplinary action taken should be disregarded after a specified period of satisfactory conduct or performance. Typically, verbal warnings for minor offences are treated as being valid for up to six months. Twelve months is an appropriate period for first written warnings and final warnings. Warnings cease to be 'live' following the specified period of satisfactory conduct and should therefore be disregarded for future disciplinary purposes.
Circumstances can exist where the misconduct is so serious that it cannot be ignored for future disciplinary purposes. In these case, it should be made very clear that the final written warning will remain 'live' without time limit and that any recurrence of the serious misconduct will lead to dismissal. However, as it is not good employment practice to keep someone permanently under threat of dismissal, such instances should be very rare.
It is important to maintain records of disciplinary actions consistently and to hold these in strict confidence. The record should encompass the nature of the complaint, action taken and the reasons for it, the date action was taken, whether an appeal was lodged, its outcome and any subsequent developments. The Data Protection Act 1998 also allows employees to have access to their personal and personnel records. In each case, copies of the records should be offered to the employee without him or her needing to request them, although in certain circumstances some information may be withheld, for example to protect a witness.