Disciplinary Procedures

In accordance with the Employment Rights Act, employers should have a disciplinary and grievance policy.

It is important for employers to have an up to date disciplinary procedure and grievance process in place. The disciplinary process can be a stressful time for both parties and having a clearly outlined course of action to follow will help both sides.

Employers are encouraged to review all policies on a regular basis to move with changing business needs and employment practice.

Employers and employees need to know; do the procedures have contractual effect, do they apply to all employees and what rights does each party have. A member of our specialist employment team can help employers to draft a bespoke policy that works for your business and review any existing process

ACAS has produced guidance on disciplinary procedures. Generally, at its most basic a minimum disciplinary procedure is required to include the following:-

• A letter clearly stating the reasons for the disciplinary action
• A meeting to discuss the reasons for proceedings
• The disciplinary decision
• A chance for the employee to appeal against the decision

As an employer you have the right to lay down your own disciplinary procedures in a contract, or Staff Handbook.

You have the right to suspend the employee, but this needs to be undertaken with care. Suspension is almost always on full pay to adhere with employment rights.

Investigations

Where a potential disciplinary matter arises, our advice would be for employers to investigate such issues promptly, with written records made to establish facts. It should then become apparent if it is appropriate to ‘drop’ the matter, to deal with it informally or to commence a formal process. An investigation may involve reviewing relevant documents, interviewing the employee and any witnesses and taking statements. The Employers objective must always be to provide a fair and unbiased disciplinary hearing. Therefore, where having regard to the size and resources of the employer if it is practical to do so, the employer may decide to appoint an investigation officer to gather the evidence so as to allow a different person to conduct any disciplinary hearing which may follow.

Any investigation or related disciplinary procedure should be handled sensitively, and the identity of the employee under investigation / subject to disciplinary action, where possible, should be kept confidential. An employee who is subject to the disciplinary procedure will normally be told the names of any relevant witnesses, but sometimes, it may be necessary for employers to consider whether anonymity of witnesses should be preserved.

Following investigation of any disciplinary issue, make sure the employee is given copies of relevant evidence in order that he or she can put his or her side of the story.

A ‘hearing’ should be arranged before any disciplinary sanctions are decided, at a mutually convenient time when both parties are fully prepared and allowing the employee the right to be accompanied by a fellow work colleague or a trade union representative if they are a member of one.

A disciplinary procedure should be applied promptly unless there is good reason for the delay. The Employer should reserve the right within any policy to vary any time scales where it is reasonable and necessary to do so.

Disciplinary Outcomes

A disciplinary procedure should set out the requirements that must be met when disciplinary action is necessary, to include the performance or behaviours which will lead to disciplinary action and what action the employer might take.

Action can then be taken by a company following the disciplinary meeting if the misconduct is confirmed.

Disciplinary action can result in the following outcomes:

Informal Action – cases of minor misconduct are often best dealt with informally. Often a firm word pointing out the behaviours or actions which are deemed unacceptable will put an employee on the right track.

If the response to informal action is not satisfactory, or the behaviour or conduct is serious, then this may warrant formal action.

Formal Action – subject to the employers disciplinary policy, formal action can consist of the following:

• Formal verbal warning: In the case of minor offences the employer may consider giving the employee a formal verbal warning. These would usually remain current for a period of 3 months.*
• Written warning : in the case of more serious offences or a repetition of earlier minor offences an employer may consider issuing a written warning. These would usually remain current for a period of 6 months.*
• Final written warning : in the case of a further repetition of earlier offences, if the employee still fails to improve or if the offence, whilst failing short of gross misconduct, is serious enough to warrant only one written warning, the employer may consider giving the employee a final written warning. This type of warning will normally remain current for a period of 12 months.*
• Dismissal : in the case of gross misconduct OR if all of the appropriate stages of the warning procedure have been exhausted, the employer may decide that dismissal is warranted. Employers are encouraged to consider other possible disciplinary sanctions to dismissal, such as demotion or transfer, loss of seniority or salary increment.
  * or as specified in the disciplinary policy

Employers should understand the importance of the ‘ACAS statutory Code of Practice on discipline and grievance’. This Code provides basic practical guidance to employers, employees and their representatives and sets out principles for handling disciplinary and grievance situations in the workplace. If you have your own disciplinary policy it should comply with the minimum requirements as set out in the code.

Employers should also be aware that if tribunal proceedings are issued Tribunals will take this code into account. Unreasonable failure to comply with any provision of the Code may result in the increase of any award made by up to 25 percent. This is known as an ‘uplift’ with such award intended to be a punitive sanction against an employer/Respondent who acts unreasonably and fails to comply with the code.

Grievance Procedures

In the event of a formal grievance complaint from an employee, the employer should have a written grievance procedure which sets out the process the employer will follow to address the grievance.

The grievance policy should include the required steps which would include :

• the requirement for a detailed letter which sets out the grievance to the employer,
• a meeting to discuss the issue
• an outcome and decision as to whether the grievance is upheld
• and an opportunity for the employee to appeal the employer’s decision.

Our specialist employment team at Davies and Partners know that these stages are central to the grievance procedure and will be able to equip employers with the concrete and straightforward advice to ensure the procedures are correct and correctly followed. We can also draft a bespoke grievance procedure which works for your business.