As an HR consultant, I regularly advise businesses on disciplinary situations. These situations are never pleasant to deal with, and very stressful for all involved. Follow our step by step guide to ensure you act fairly, consistently and reasonably.
The bottom line is that you need to follow a fair procedure and act consistently and reasonably in regard to any action taken.
Before taking any action, you should consider your own disciplinary procedure, but also the ACAS code of practice, which provides practical guidance to employers on how to fairly carry out disciplinary procedures for misconduct.
- Is formal action necessary?
First of all, you need to decide whether a formal investigation and disciplinary proceedings are even necessary. Whenever possible, aim to resolve any problem with an informal conversation before moving on to formal action. This can often be a better way of dealing with the problem than launching straight into an investigation and formal disciplinary action. If this approach is unsuccessful however, you need to move on to a more formal procedure.
- Starting the process
If informal action has not resolved an issue, or if the issue is too serious for informal resolution, you will need to commence formal processes.
Both at the outset of and during a formal process, you will need to:
- Check the requirements of your disciplinary policy.
- Choose an appropriate investigator.
- Keep in mind the general requirement of having different people at each stage (that is; the investigation, disciplinary meeting and appeal meeting) and decide who could conduct each stage.
- Keep to timescales in disciplinary policies.
In some instances of serious misconduct, you may wish to consider suspending the employee. However, you need to do this consistently and fairly so make sure you’ve fully considered the situation and the implications before taking this step. Suspension may be appropriate, for example, where there is a potential threat to the business or other employees, or where it is not possible to properly investigate the allegation if an employee remains at work (for example because they may destroy evidence or attempt to influence witnesses).
Employees need to be informed of the fact that they have been suspended as soon as possible and this should be followed up in writing.
Any suspension should be on full pay (and contractual benefits). The suspension itself is not a sanction and care should be taken to avoid any suggestion that the suspension implies guilt or that the situation has been pre-judged.
The period of suspension should be as short as possible and the suspension decision should be kept under regular review.
The requirement for an investigation to take place prior to any disciplinary action is critical. The level of the investigation will depend on the circumstances of the matter and could include investigation meetings and obtaining witness statements or simply a collation of the evidence.
The investigation should be conducted in a proportionate and sensitive manner remembering that guilt should not be presumed.
You will need to decide who should conduct the investigation. In most cases, the employee’s immediate line manager will be the appropriate person, but this may not always be the case. Sometimes the employer’s own procedure stipulates who is to conduct an investigation, or someone with specialist knowledge may be needed.
When selecting the investigator, you will also need to consider who should conduct the disciplinary hearing, if one becomes necessary, and any potential appeal hearing.
The chair of the meeting should be impartial and ideally have no previous involvement in the matter. This means that they should not also be a witness, have conducted the investigation or have taken the decision to suspend the accused employee. Prior to appointing a chairperson, the employer should also consider who would be the appropriate person to conduct any appeal. ACAS recommend that ideally the person who conducts the appeal should be more senior than the person who made the disciplinary decision.
- Information to be given to the employee before the disciplinary hearing
Once the investigation is complete, if you decide that formal disciplinary action is required, you should write to the employee to confirm the outcome of the investigation and invite them to a disciplinary hearing.
The letter should give the employee sufficient information about the allegations and their possible consequences, to enable them to prepare their case for the disciplinary hearing. Copies of any documents or evidence on which you intend to rely at the hearing should be provided. It is advisable to send the employee a copy of your disciplinary procedure, so that they understand the process.
The disciplinary invitation letter should also set out the arrangements for the disciplinary hearing, which should be at a reasonable time and place.
An employee should be given sufficient time to consider the allegations and to read any witness statements and other investigation materials.
It is important to make sure the employee appreciates the severity of the allegations and the possible consequences. They should not be expected to work this out for themselves from the disciplinary policy. In particular, an employee who is at risk of dismissal must be told of this in advance of the hearing, otherwise the dismissal may be unfair.
- Statutory right to be accompanied
Under the Employment Relations Act 1999, all workers have the statutory right to be accompanied. They can choose to be accompanied by either a fellow worker or trade union representative.
- Record keeping
Records should be made of all disciplinary proceedings, and it is advisable to have a person present to take notes. You should provide the employee with a copy of these notes. Notes should be clear and concise, as it may be necessary not only to refer to them, but also to produce them during the course of any subsequent disciplinary hearing or tribunal proceedings.
- Making a decision
There are two main components to the decision; does the disciplinary chair uphold the allegations of misconduct and, if yes, what sanction does he/she impose as a result?
The disciplinary chair should only reach a finding that an employee is guilty of the allegations against them if they have a genuine belief in that guilt and that genuine belief was based on reasonable grounds.
You should adjourn the disciplinary hearing for the chair to consider the evidence and make a decision. This adjournment will assist in showing that the decision was reached fairly and reasonably having taken all information and evidence into account. A decision given to the employee too hastily could indicate that the matter had been prejudged and therefore the employee could claim that the hearing was not conducted fairly.
- Communicating the decision
Once a decision has been made, the employee should be informed of the decision without unreasonable delay. They must also be informed of their right of appeal.
Although the ACAS Code requires this to be in writing, it is good practice, once you have reached a decision, to reconvene the meeting and explain the decision to the employee face-to-face.
- Right to appeal
If an employee appeals against the disciplinary decision, they should be invited to a meeting to discuss their grounds of appeal.
Ideally, the person hearing the appeal should be more senior than the person responsible for making the decision to dismiss or imposing the disciplinary sanction in the first instance.
As is the case with the disciplinary hearing itself, the employee must be given the right to be accompanied by a work colleague or a trade union representative.
Following the appeal meeting, you should write to the employee to give them the appeal decision and state that the decision is final.
If you need support at any stage of the disciplinary process, please get in touch!
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