The outcome of a disciplinary process should not be prejudged.
As a manager or employer, how should you deal with a disciplinary at work? The basics are to take advice before you take any action, even before deciding whether to suspend the employee, and to ensure that you follow your organisation’s disciplinary process.
Do you have to discipline employees for misconduct?
No, indeed you should firstly consider whether formal disciplinary action is appropriate, and see if you can resolve the matter informally. Have a private chat with the employee(s) involved, take on board what they say, and try to agree a way forward to rebuild relations and ensure there’s no repeat of the behaviour that’s causing concerns. It’s usually worth seeing if you can nip minor issues in the bud. However, it’s more likely to be reasonable and necessary to take formal disciplinary action with more serious misconduct, such as bullying, harassment, insubordination and so on.
It’s important to note that even informal chats should be recorded and saved in the employee’s personnel file. This is so you’ve got a record in case of any dispute over what was said/agreed, and can refer to it in the event of a repeat. In turn, this helps justify a move to a formal disciplinary process at that point.
If the issue is more about performance than misconduct, then slightly different procedures should be used, and your options are slightly different. This blog talks about misconduct rather than performance. See here for a simple guide to misconduct.
How do you manage disciplinary issues?
So, you’ve decided that an informal chat won’t suffice. What do you do next?
Again, refer to your organisation’s disciplinary procedure. If you don’t have one, now is the time to ask us to prepare a tailored disciplinary procedure for you. All employers have to publish the disciplinary rules and processes that apply to their employees, so this is a necessary step to take.
When should an employee be suspended pending investigation?
Disciplinary procedures will set out when employees can or should be suspended and should make clear that suspension is not regarded as disciplinary action. However, it’s important not to automatically suspend, even for minor allegations. Each case should be considered, and the reasoning recorded, whatever decision you make.
What are the main stages of the disciplinary process?
The first step in a formal disciplinary process is to investigate the allegations that have been made against the employee. Appoint an appropriate manager to conduct the investigation – who this should be will depend on the nature and size of the organisation. Sometimes it’s appropriate to appoint an external HR professional to deal with the investigation, to keep senior managers “clean” for later stages.
Once the investigation is complete, if formal disciplinary action may be appropriate, move to the next step.
Next, invite the employee to a disciplinary hearing, at which they will have the opportunity to put forward their version of events. Supply all relevant information to the employee a reasonable time in advance of the disciplinary hearing so they have time to prepare. They are also entitled to be accompanied to the hearing by a work colleague or trade union representative.
Following the disciplinary hearing, consider all the information gathered throughout the process, and make a decision on the appropriate decision. There are a number of potential sanctions for misconduct, depending on the nature and seriousness of the conduct in question.
Finally, the employee should always be given the opportunity to appeal against the decision made.
The employer should follow a fair process.
What should you do in a disciplinary hearing?
- Start the process with an objective mind (ie do not prejudge any outcome)
- Ensure that the employee understands the allegations against them
- Ensure that the employee understands the potential sanctions that may be imposed
- Give the employee all the information they need to respond to the allegations
- Give the employee a chance to tell their side of the story
- Allow the employee to bring a companion with them to the disciplinary hearing
- Make any reasonable adjustments due to any disability of the employee
- Make a full note or recording of the disciplinary hearing – and all other steps taken
- Have the same manager deal with the investigation and disciplinary process
- Provide a written decision after the disciplinary hearing
- Allow the employee to appeal
What type of dismissals does the Acas Code of Practice apply to?
The Acas Code of Practice on disciplinary and grievance procedures applies to any case where an employer wants to address an employee’s conduct or performance – not just cases where the employee has been dismissed.
It only applies to employees – not contractors for instance. Employment Tribunals will closely consider whether an employer has complied with the Acas Code when considering unfair dismissal claims brought by employees who were dismissed for misconduct, gross misconduct, or performance reasons.
It’s therefore important to ensure that your organisation’s disciplinary procedure complies with the Acas Code. Any tailored disciplinary process that we provide will do so.
Need more help?
If you need more help with the subjects covered here then do reach out to our expert online employment law solicitors. You can email us at firstname.lastname@example.org or call 03300 020 863.