Law guide: Employment

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Introduction to disciplinary procedures

Introduction to disciplinary procedures

Contents

Introduction

Even in well-run businesses, it may sometimes be necessary to take disciplinary action against employees.

Therefore it's crucial that you have written dismissal/disciplinary rules and procedures. If problems do arise, you can deal with them using your procedures rather than let them fester into resignations and/or tribunal claims.

Your rules and procedures must:

  • Be set out in writing
  • Be fair and reasonable, which means that they should take into account the principles set out in the Advisory Conciliation and Arbitration Service (Acas) Code of Practice on discipline and grievance.

In Northern Ireland, this requirement is satisfied if they comply - at the very least - with the statutory dismissal/disciplinary procedures. The Labour Relations Agency has a code of conduct that can be used as an aid but it does not replace the statutory procedures.

An unreasonable failure to meet either of these requirements may result in extra compensation for the employee if they succeed in a tribunal claim.

Setting out disciplinary rules

Draw up rules to set the standards of conduct and performance required. Make sure your rules are fair, clearly written and reflect the needs of your business.

Rules can help:

  • You act fairly and consistently
  • Your workforce to understand what you expect of them
  • Contain and resolve issues
  • Avoid potential employment tribunal complaints

A disciplinary procedure is the means by which rules are observed and standards are maintained. The procedure should be used primarily to help and encourage employees to improve rather than just as a way of imposing punishment. It provides a method of dealing with any apparent shortcomings in conduct or performance and can help an employee to become effective again. The procedure should be fair, effective, and consistently applied.

The rules should not discriminate on the grounds of age, disability, gender reassignment, marriage or civil partnership, pregnancy or maternity, race, sex, sexual orientation and/or religion or belief (England, Wales and Scotland) or religious belief or political opinion (Northern Ireland).

You cannot expect to list everything that might lead to disciplinary action, but you could cover:

  • Absence
  • Discrimination, bullying and harassment
  • Health and safety
  • Personal appearance
  • Prohibited activities
  • Smoking, alcohol and drugs
  • Work standards
  • Timekeeping
  • Use of company facilities and equipment

The rules should also set out behaviour which will be treated as gross misconduct - misconduct judged so serious that it's likely to lead to dismissal without notice. It's important to give examples of what will count as gross misconduct, such as:

  • Bullying
  • Drunkenness/drug abuse
  • Fighting at work
  • Fraud
  • Gross negligence/insubordination
  • Serious breaches of health and safety
  • Theft
  • Wilful damage to property

Make it clear in your disciplinary procedure that the list is not meant to be exhaustive. What counts as gross misconduct varies depending on the type of business and the role of the employee.

Informal and formal disciplinary action

Informal action

If an employee's performance or conduct does not meet your standards, you should try to help that employee to improve. Have an informal discussion with the employee as soon as problems arise, explain the problem and agree actions with them. This kind of informal chat is not part of any formal disciplinary procedure.

If the employee's poor conduct or performance persists, you may have to take formal disciplinary action.

Formal disciplinary action

When applying formal procedures, employers should always bear in mind principles of fairness. For example, employees should be informed of the allegations against them, together with the supporting evidence, in advance of any disciplinary meeting. Employees should be given the opportunity to challenge the allegations before decisions are reached and should be provided with a right to appeal.

Good disciplinary procedures should:

  • Be in writing
  • Be non-discriminatory
  • Provide for matters to be dealt with speedily
  • Allow for information to be kept confidential
  • Tell employees what disciplinary action might be taken
  • Say what levels of management have the authority to take the various forms of disciplinary action
  • Require employees to be informed of the complaints against them and supporting evidence, before a disciplinary meeting
  • Give employees a chance to have their say before management reaches a decision
  • Provide employees with the right to be accompanied
  • Provide that no employee is dismissed for a first breach of discipline, except in cases of gross misconduct
  • Require management to investigate fully before any disciplinary action is taken
  • Ensure that employees are given an explanation for any sanction and allow employees to appeal against a decision
  • Apply to all employees, irrespective of their length of service, status or say if there are different rules for different groups
  • Ensure that any investigatory period of suspension is with pay, and specify how pay is to be calculated during this period. If, exceptionally, suspension is to be without pay, this must be provided for in the contract of employment
  • Ensure that any suspension is brief, and is never used as a sanction against the employee prior to a disciplinary meeting and decision. Keep the employee informed of progress
  • Ensure that the employee will be heard in good faith and that there is no prejudgment of the issue
  • Ensure that where the facts are in dispute, no disciplinary penalty is imposed until the case has been carefully investigated, and there is a reasonably held belief that the employee committed the act in question

Criminal charges or convictions

An employee should not be dismissed or otherwise disciplined solely because he or she has been charged with or convicted of a criminal offence. The question to be asked in such cases is whether the employee's conduct or conviction merits action because of its employment implications.

Where it is thought the conduct warrants disciplinary action, the following guidance should be considered:

  • The employer should investigate the facts as far as possible, come to a view about them and consider whether the conduct is sufficiently serious to warrant instituting the disciplinary procedure
  • Where the conduct requires prompt attention, the employer need not await the outcome of the prosecution before taking fair and reasonable action
  • Where the police are called in, they should not be asked to conduct any investigation on behalf of the employer, nor should they be present at any meeting or disciplinary meeting

In some cases, the nature of the alleged offence may not justify disciplinary action – for example, off-duty conduct which has no bearing on employment – but the employee may not be available for work because he or she is in custody or on remand. In these cases, employers should decide whether, in the light of the needs of the organisation, the employee's job can be held open. Where a criminal conviction leads, for example, to the loss of a licence so that continued employment in a particular job would be illegal, employers should consider whether alternative work is appropriate and available.

Where an employee, charged with or convicted of a criminal offence, refuses or is unable to cooperate with the employer's disciplinary investigations and proceedings, this should not deter an employer from taking action. The employee should be advised in writing that, unless further information is provided, a disciplinary decision will be taken on the basis of the information available and could result in dismissal.

Where there is little likelihood of an employee returning to employment, although there might be an argument that the employment contract comes to an end automatically, it is normally better for the employer to take disciplinary action.

An employee who has been charged with, or convicted of, a criminal offence may become unacceptable to colleagues, resulting in workforce pressure to dismiss and threats of industrial action. Employers should bear in mind that they may have to justify the reasonableness of any decision to dismiss and that an employment tribunal will ignore threats of, and actual industrial action when determining the fairness of a decision. They should consider all relevant factors, not just disruption to production, before reaching a reasonable decision.