Disciplinary process – how to get it right

Emotions can run high when dealing with allegations of employee misconduct so what is the best way to manage the disciplinary process to ensure a legally compliant and fair outcome.

Businesses should have their disciplinary process set out in a company handbook or policy which is available to all staff.  For employers it can however be daunting to need to use it, especially for the first time.

If you don’t follow the process, you have set out, there is a risk that the employee could raise a grievance claim against you, which could result in an employment tribunal.

There are a number of types of behaviour which are grounds for a disciplinary process.  These can include:

•   Violence, verbal abuse or harassment of any type

•   Gross negligence

•   Bullying

•   Discrimination

•   Unauthorised absence / repeated lateness

•   Theft/fraud

•   Poor quality of work / performance issues

Before embarking on the disciplinary process, it is usually best to hold an informal discussion with the employee to raise the matter.  If proceeding down the formal route the employer should set out in writing the details of the issues.  Where necessary an investigation to gather evidence may
be useful.

The investigation and evidence gathering may involve speaking to witnesses and reviewing CCTV footage. Keep a detailed record of all of the evidence and the process which has been followed.  You can suspend the employee (on full pay) whilst the investigation takes place although this should be exercised with caution and kept to no longer than is absolutely necessary.  It is important that the employee is told that the suspension is not a disciplinary sanction.

If after the informal discussion or reviewing the evidence, you decide there is no case to answer, the matter can be closed and no further action taken.

For matters where a disciplinary sanction is considered appropriate the employee would then be called to a disciplinary hearing which should be held as soon as possible, many policies have a time scale.  In advance of this hearing, you need to tell them what the purpose of the meeting is, highlight the issues being considered and what the potential outcomes are.  The employee has a right to be accompanied to the meeting by a colleague or trade union representative. If the representative can’t attend the meeting at the scheduled time, then it can be postponed to a time of the employee’s choosing, but no more than five working days after
the initial date.

During the meeting you should give the employee their chance to speak, and this is often where emotions can run high.  Allow them to provide evidence and if they need it, take a short break to compose themself.  They should also be allowed to call their own witness and ask for further advice or to see evidence. If the employee brings an important new fact which hasn’t been discovered during the investigation, then the meeting should be adjourned for further investigation.

The employee’s representative can speak on their behalf, but they cannot answer questions on their behalf.

Possible outcomes of a disciplinary meeting are:

•   A verbal warning

•   A written warning

•   A final warning

•   No action

•   Demotion

•   Dismissal

The outcome should always reflect the seriousness of the issue, and the employee has a right to appeal against the decision, and they should provide their reasons for the appeal in writing.  A good policy will outline the timescale for this and to who the appeal should be sent.

A further appeal hearing should then be scheduled as soon as possible and considered by (where possible) an impartial chair who hasn’t been involved in the disciplinary investigation or procedure previously.

There can be other issues to consider along the way, such as what if the employee goes on sick leave or tenders their resignation before the meeting.  You should also consider the wider impact a process like this can have on the rest of the business.

Disciplinary action can be time-consuming, but it is important to stick to the process to protect the business against future employment claims.

If you would like to review your disciplinary process or need help to carry one out, get in touch with our team today.

Amanda Finn is a partner at Gullands Solicitors and can be contacted at a.finn@gullands.com