So you are faced with an employee suspected of misconduct.   How to proceed? 

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But before considering that, why is the procedure you follow important?

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There is no legislation that specifies what a satisfactory disciplinary procedure looks like.  However, we do have something known as the “ACAS Code”, or, more fully, the” ACAS Code of Practice on Discipline and Grievance”.  This describes a set of principles and procedures that represent fairness and  good practice.  If you have the misfortune to find yourself in an Employment Tribunal, you will be judged against your compliance with these procedures.  Failure to comply does not mean you will automatically lose the case, but if you don’t, there better be a very good reason why.  Worse still, Tribunals can adjust any awards made by up to 25% for unreasonable failure to comply with the code.

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In addition, you may have your own written disciplinary procedure which you should refer to before initiating action.  Are your procedures contractual?  If so, make sure you follow them to avoid a breach of contract claim.  However, they don’t have to be contractual, which allows you greater flexibility.  Crafting appropriate procedures is tricky.  Make sure you have these professionally drafted!

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One more step – are you sure the concern is properly regarded as misconduct and not capability/underperformance?  There are different procedure applicable to deal with capability.  Very broadly, the difference is: conduct is characterised as “can do, won’t do”; capability is “can’t do” – either because of lack of competence or inability resulting from physical/mental incapability.

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Good practice requires, as a minimum, the following steps:

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Act promptly when you become aware of a concern

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Delay tends to show that you weren’t that concerned at the time – so why are you bothered now?  Also delay will decay the quality of witness evidence and potentially result in an unfair procedure.

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Investigation

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What is alleged to have occurred and what evidence is available?  Collect documentary evidence and witness statements.  It is important to collect all available relevant evidence including evidence that potentially does not support the allegation.

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Disciplinary Hearing

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Inform the employee of the allegations and allow the opportunity for him/her to present a defence.

You should provide all the evidence to the employee in advance of a hearing and allow time for him/her to prepare a defence.   The employee should also be advised as to the possible outcomes – e.g. written warning or dismissal. The employee is also entitled by law to be accompanied by a co-worker or Trade Union representative.

At the hearing you should present the case, explain the evidence and allow the employee to ask questions, challenge the evidence, bring their own evidence, and argue mitigation.

Decision

It is strongly recommended to adjourn the hearing before making a decision.   This shows you have allowed time to consider the employee’s representations and think about an appropriate sanction, should you find against the employee.

The sanction imposed should be reasonable and proportionate: dismissal for a single case of lateness is unlikely to be considered reasonable.  It is also critical to show consistency – that others guilty of similar offences are treated in the same way.

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Appeal

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If the employee disagrees either with the findings of the disciplinary procedure or the sanctions imposed they should be allowed to appeal.  Where the decision is to terminate employment, the appeal will not delay dismissal and will considered post-employment.

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Short-serving employees

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Most employers are aware that an employee requires two years’ service to bring an unfair dismissal claim before a Tribunal.  So if my employee has less than 2-years' service, can I simply dismiss without formality?

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You will not face what we would call an “ordinary” unfair dismissal claim.  However, the employee has a wide variety of rights that accrue from day 1 of employment – protection from discrimination, in all its many forms, protection from detriment for raising a health and safety or whistle blowing complaint, or for asserting a statutory right such as time of for dependents.  Holding a proper disciplinary process will ensure that these possible defences are raised and considered at the proper time.

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These are but the bare bones of the process.  Some of the potential complications are listed below and you should not proceed without professional advice.

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This may be an opportunity to try our FREE, no obligation consultation.  Click below for help.

 

• The employee goes sick before the disciplinary hearing.  Can we proceed anyway?

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• The employee counters with a grievance.  Does this have to be considered first, second, or together with the disciplinary?

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• Who should hear the matter?  Should we have different individuals dealing with investigation, hearing and appeal?

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• Can we bring in an external expert to handle the matter?

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• What if the employee wants someone other than a colleague of trade union  rep to attend?  Do we have to agree?

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• Can the employee insist on cross-questioning witnesses?

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• The employee fails to attend the meeting?  Can we simply find against the employee and issue a warning or dismiss ?

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