A proper disciplinary hearing should be about improving employee performance, as Neil Atkinson discusses

• The objective of any good disciplinary procedure is to improve employee performance rather to dismiss the member of staff following an incidence of misconduct.
• Employers should always be encouraged to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures, which sets out the rights and duties of the employee and how the employer should conduct the disciplinary process without falling foul of employment law.
• Try and resolve the issue informally in-house before you pursue disciplinary measures.
• Make sure you write to your employee if you do proceed with the process, making them aware of the hearing details and their right to a companion.

When it comes to employer-employee relations, the disciplinary process can be one of the most difficult processes to manage effectively. There are multiple human resource issues that can arise if it is not handled sensitively and with the right degree of emotional intelligence; prime among those being unfair or premature dismissal and recourse to the tribunal process on the part of the employee.

Creating a legally compliant procedure

The foremost objective of any good disciplinary procedure is to improve employee performance rather to dismiss the member of staff following an incidence of misconduct. This will ensure that the employee is given every opportunity to improve their performance before any sanction or other punitive action is meted out.

Correctly followed, an effective disciplinary procedure will ensure that the right staff are encouraged to improve before being sanctioned and that the employer benefits from the best performance of the individual member of staff. Bear in mind that, though the ACAS code isn’t legally binding, your compliance with it will be considered in the hearing.  

Employers should always be encouraged to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures, which sets out the rights and duties of the employee and how the employer should conduct the disciplinary process without falling foul of employment law.

If you don’t comply, you’ll face even greater compensation costs against your business, by as much as 25%.

How the ACAS Code of Practice protects employers

The Code of Practice on Disciplinary and Grievance Procedures create a set of guidelines so that employers know where they stand. Plus, if an employee fails to meet their side of the code during proceedings, such as non-attendance of meetings, it could reduce any compensation award by 25%.  

This particular code also encourages both parties to deal with issues early and in-house, reducing the need to go to tribunal.

What comes under the disciplinary process

This is more likely to be misconduct in the workplace, which includes:

• Insubordination, such as refusing to work
• Being absent without permission (AWOL)

It could also happen outside, such as at the work Christmas party.

Gross misconduct is deemed to have serious or very serious consequences. Think fraud, physical violence, serious insubordination and gross negligence.

What doesn’t count under the disciplinary process

There are also, quite frequently, mitigating circumstances in the case of alleged employee misconduct. It is vitally important that before action is taken any personnel issues are handled sensitively and objectively.

If the employee has been underperforming then this should fall within the ambit of a capability review rather than the disciplinary process.

Similarly, absence because of ill health is not a disciplinary offence, unless the employer has some evidence that the employee is shirking. In that case, employers should follow an absence management process, rather than disciplining an employee who has been absent from work. It is essential to distinguish between capability issues that should be dealt with by performing a capability review and true disciplinary matters. Only allegations of misconduct should be dealt with in a disciplinary process.

Step-by-step employee disciplinary procedure

First, see if there’s an informal way that you could deal with the issue, such as talking to the staff members involved and agreeing on an improvement plan.

It is crucial that the disciplinary action taken is an appropriate response to the misconduct which has occurred. Therefore, before deciding whether to impose a disciplinary sanction and what sanction to impose (eg first warning, final warning, and dismissal) certain facts should be gleaned. Consideration should be given to what the employee did; the impact of their actions and any action previously taken in similar cases.

In addition, the employee’s former disciplinary record should be taken into account. The ACAS Code recommends that employees should be given at least one chance to improve before a final written warning is given. Employers should only resort to dismissing the member of staff without giving prior disciplinary warnings for cases of serious misconduct.

Inform the employee in writing

It’s a legal requirement to tell your employee in writing. Outline why there is a disciplinary against them and what could happen as well as details of the hearing. You should also tell them about their right to representation or support, be that a colleague or trade union representative.

ACAS has letter templates that you can use.

It’s important that you inform them that they have the right to be accompanied by a companion. That could be a colleague, a workplace trade union representative or an official employed by a trade union. If your employee is disabled, you should make reasonable adjustments for them, such as allowing a support worker or specialist legal representative.

Before any disciplinary hearing is convened, the employer should appoint an investigator to look into the allegations on the employer’s behalf. The employer’s disciplinary procedure may specify who this person should be, but wherever possible, it should be someone relatively senior who will have an understanding of the issues.

The investigation should ascertain the facts with a view to recommending whether there is a disciplinary case to answer. The investigator should speak to the employee concerned and to any witnesses and should review any documents (such as emails, notes, CCTV) which may be relevant to the allegations. Wherever possible any witness interviews should be conducted face to face. Statements should be taken and witnesses should be asked to sign and date them.

The investigator should also explain to witnesses that they may be required to attend a disciplinary hearing. Once the investigator has completed the investigation they should report on whether they consider there is a disciplinary case to answer. It may be that the matter can be dealt with informally or that no action is necessary.

Where the case needs to progress to a disciplinary hearing, a separate disciplinary officer should be appointed to chair the disciplinary meeting, to ensure impartiality from the investigation process.

Holding the hearing

The hearing should be held as soon as possible after the investigation, but make sure the employee has the space to prepare.

At the hearing itself, both sides must clearly state their case. The employee’s companion can also state the employee’s case.

Making the decision

The employer should consider the case carefully after the hearing and let the employee know what happens next, giving them a timeframe. They should also take a confidential written record of the hearing.

Whatever you decide, you must write to the employee by letter or email as soon as possible. If the employee’s conduct or performance hasn’t improved in the timeframe set then then the employer should do the disciplinary procedure. The snag is that this procedure should keep being repeated until improvements are made or until a dismissal is the only fair and reasonable course of action.

If you don’t need to take further action, let the people involved know.

Remind staff not to talk about it with colleagues.

Offer the chance of appeal

Should the outcome be a dismissal, the employee should know about their right to appeal. They could appeal if they feel that:

• The outcome is too severe
• That any stage of the disciplinary procedure was unfair

Keeping records

As an employer, you should keep a record of these cases, including the instances where there was no further action needed. These records must be kept confidential and only kept for as long as necessary.

Further reading on employee discipline