Law guide: Employment

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Disciplinary penalties

Disciplinary penalties

What should be considered before deciding any disciplinary penalty?

When deciding whether a disciplinary penalty is appropriate and what form it should take, consideration should be given to:

  • Whether the rules of the organisation indicate what the likely penalty will be as a result of the particular misconduct
  • The penalty imposed in similar cases in the past
  • Whether standards of other employees are acceptable, and that this employee is not being unfairly singled out
  • The employee's disciplinary record (i.e. current live warnings - expired warnings should not be considered in this context), general work record, work experience, position and length of service
  • Any special circumstances which might make it appropriate to adjust the severity of the penalty
  • Whether the proposed penalty is reasonable in view of all the circumstances
  • Whether any training, additional support or adjustments to the work are necessary

It should be clear what the normal organisational practice is for dealing with the kind of misconduct or unsatisfactory performance under consideration. This does not mean that similar offences will always call for the same disciplinary action - each case must be looked at on its own merits and any relevant circumstances taken into account. Such relevant circumstances may include health or domestic problems, provocation, justifiable ignorance of the rule or standard involved or inconsistent treatment in the past.

Imposing the disciplinary penalty

First formal action – unsatisfactory performance

In cases of unsatisfactory performance an employee should be given an 'improvement note', setting out:

  • The performance problem
  • The improvement that is required
  • The timescale for achieving this improvement
  • A review date
  • Any support, including any training, that the employer will provide to assist the employee

The employee should be informed that the note represents the first stage of a formal procedure and is equivalent to a first written warning and that failure to improve could lead to a final written warning and, ultimately, dismissal. A copy of the note should be kept and used as the basis for monitoring and reviewing performance over a specified period (e.g., six months).

If an employee's unsatisfactory performance – or its continuance – is sufficiently serious, for example, because it is having, or is likely to have, a serious harmful effect on the organisation, it may be justifiable to move directly to a final written warning.

First formal action – misconduct

In cases of misconduct, employees should be given a written warning setting out the nature of the misconduct and the change in behaviour required.

The warning should also inform the employee that a final written warning may be considered if there is further misconduct. A record of the warning should be kept, but it should be disregarded for disciplinary purposes after a specified period (e.g., six months).

Final written warning

If the employee has a current warning about conduct or performance then further misconduct or unsatisfactory performance (whichever is relevant) may warrant a final written warning. This may also be the case where 'first offence' misconduct is sufficiently serious, but would not justify dismissal. Such a warning should normally remain current for a specified period, for example, 12 months, and contain a statement that further misconduct or unsatisfactory performance may lead to dismissal.

Dismissal or other sanction

If the employee has received a final written warning, further misconduct or unsatisfactory performance may warrant dismissal.

Alternatively the employment contract may allow for a different disciplinary penalty instead. Such a penalty may include disciplinary transfer, disciplinary suspension without pay, demotion, loss of seniority or loss of increment. These sanctions may only be applied if allowed for in the employee's contract or with the employee's agreement.

Any penalty should be confirmed in writing, and the procedure and time limits for appeal set out clearly.

Dismissal with notice

Employees should only be dismissed if, despite warnings, conduct or performance does not improve to the required level within the specified time period. Dismissal must be reasonable in all the circumstances of the case.

Unless the employee is being dismissed for reasons of gross misconduct, they should receive the appropriate period of notice or payment in lieu of notice.

Dismissal without notice

Employers should give all employees a clear indication of the type of misconduct which, in the light of the requirements of the employer's business, will warrant dismissal without the normal period of notice or pay in lieu of notice. So far as possible, the types of offences which fall into this category of 'gross misconduct' should be clearly specified in the rules, although such a list cannot normally be exhaustive.

Gross misconduct is generally seen as misconduct serious enough to overturn the contract between the employer and the employee thus justifying summary dismissal. Acts which constitute gross misconduct must be very serious and are best determined by organisations in the light of their own particular circumstances.

However, examples of gross misconduct might include:

  • Theft or fraud
  • Physical violence or bullying
  • Deliberate and serious damage to property
  • Serious misuse of an organisation's property or name
  • Deliberately accessing internet sites containing pornographic, offensive or obscene material
  • Serious insubordination
  • Unlawful discrimination or harassment
  • Bringing the organisation into serious disrepute
  • Serious incapability at work brought on by alcohol or drug misuse
  • Causing loss, damage or injury through serious negligence
  • A serious breach of health and safety rules
  • A serious breach of confidence

If an employer considers an employee guilty of gross misconduct and thus liable for summary dismissal, it is still important to follow a fair procedure as for any other disciplinary offence. This will include establishing the facts of the case before taking any action, holding a meeting with the employee and allowing the employee the right of appeal. It should be made clear to the employee that dismissal is a possibility. A short period of suspension with full pay to help establish the facts or to allow tempers to cool may be helpful. However, such a period of suspension should only be imposed after careful consideration and should be kept under review. It should be made clear to the employee that the suspension is not a disciplinary action and does not involve any prejudgment.

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