Disciplinary cases can be difficult for all involved. As well as dealing with the emotional side of things you also need to ensure you are following process and adhering to the Acas Code of Practice on disciplinary and grievance procedures. Employment tribunals will take the Code into account when considering cases, and can adjust the amount of compensation by up to 25% if it has not been followed.
To help you follow the principles of the Code, here are our tips for remaining compliant.
Have different people deal with different stages of the disciplinary process
Ideally, different people should deal with different stages of the disciplinary process to maintain impartiality and allow for fair investigations, disciplinary hearings and appeals. Senior managers are normally in the best position to do this, and must be not involved in the case. However, completing each stage with different personnel may be difficult for smaller businesses.
Deal with disciplinary issues promptly
Employment tribunals will not be impressed if an employer takes too long when dealing with a disciplinary case. Some cases will naturally take longer than others, but unexplained delays should be avoided. Remember, an investigation can take time and may take several meetings to resolve. Acting promptly will also show the employee and tribunal that the case is being taken seriously. Remember to keep those involved up-to-date on any potential delays.
Never rely on memory during a disciplinary or grievance procedure. Employers should keep a record of evidence gathered during investigations, and minutes should be taken to record what’s been said during all meetings along with any agreed outcomes. Remember, the record of allegations should be specifically worded. For example, inviting someone to a disciplinary meeting over ‘aggressive behaviour in the post room’ is not clear enough, but if that were ‘on 30th January 2020 at around 2.30pm, you swore at the post room assistant and threw a parcel at him’ would be.
Allow employees to appeal
Employers need to give employees the chance to appeal when the outcome of a disciplinary hearing is reached. Appeals should be unbiased and dealt with impartially by a manager not previously involved with the case. The employee’s right to appeal should be made clear when the disciplinary hearing has concluded, along with how to make one and the timescale for lodging the appeal. The decision should be confirmed within five working days.
Don’t rely on only once source of evidence
Relying on one source of evidence during an investigation can lead to accusations of bias. Employers should look for corroborative evidence to carry out a fair investigation. This can include interviewing the employee accused, and other staff who may be involved or aware of what had happened. If possible, written records or statistics relating to performance should be used to establish the facts.
Allow employees to be accompanied
Employees have the right to make a reasonable request to be accompanied by a companion when invited to a disciplinary or grievance hearing. The companion can address the hearing to put forward and sum up the employee’s case, but can’t answer questions on their behalf. The companion can be a colleague or trade union representative. If the chosen companion cannot attend on the date of the hearing, the employee should be asked to propose an alternative date (usually within five days).
Have a system of warnings
In cases of minor misconduct, a series of warnings is appropriate to allow employees an opportunity to improve. Only cases of gross misconduct would justify summary dismissal. You need to be familiar with the disciplinary process that applies within your own organisation.
Provide the employee with the evidence against them
Employers need to provide an employee with any witness statements or evidence against them in advance of a disciplinary hearing. They should be allowed reasonable time to be able to prepare a defence. The disciplinary officer should precisely state the allegation, and if the employee denies it, go through the evidence gathered. The employee should be given the chance to present evidence of their own.
Explain the nature of the allegations clearly
Any alleged misconduct should be clearly and consistently communicated to an employee so they know what they are being accused of. If any other allegations come to light during an investigation they can be added to the process too, but disciplinary sanctions can only be made for allegations that have been properly investigated and communicated to the employee, so don’t throw any surprises into the disciplinary hearing.
Warn the employee of the possible consequences
Employers must tell the employee what the possible outcome of disciplinary action could be. This should be outlined clearly in the invite letter so they can prepare their defence appropriately and be aware that dismissal is a possibility. This could include a formal warning, a statement about what improvements are expected (and over what period), or even dismissal depending on the allegations.
Deminos can help
To learn more about how to carry out a fair and consistent disciplinary procedure, contact a Deminos advisor on 020 7870 1090 or try our Disciplinary Procedures eLearning course for free: https://www.deminos.co.uk/e-learning