When taking disciplinary action against an employee you must be able to demonstrate that the process is reasonable and fair. The procedure should follow the Acas code of practice. If it is found that you unreasonably failed to follow these guidelines, the employee could receive a 25% increase in any award against you in an Employment Tribunal. (This also works in reverse – their award can be reduced by 25% if a failure is found against the employee.)
When drawing up your business’s disciplinary procedure, the following should be included:
- Your commitment to first attempt to resolve any issues informally, where appropriate.
- Your commitment to investigate and establish facts regarding any offence that leads to disciplinary action, including holding investigatory meetings.
- Your commitment to the inform the employee of the specifics of their alleged misconduct or issues of performance in writing that resulted in the disciplinary action against them. The document should also detail the possible consequences and the time, date and location of the hearing. This should be provided early enough prior to the hearing for the employee to prepare their defence.
- A statement detailing the employee’s right to attend any hearing accompanied by a colleague or trade union official, and their right to contribute. Where a trade union official is chosen, they are entitled to attend even if you do not recognise the union.
- Your commitment to give fair opportunity for the employee to state their case at each meeting and give account to any mitigating circumstances they raise.
- Examples of kinds of offences that could amount to misconduct and gross misconduct – but make clear that these examples are not an exhaustive list.
- An explanation that the severity of the offence will correspond to the stage of the disciplinary process that the case enters at. For example – serious misconduct will result in the first step of the disciplinary process being a written warning, whereas gross misconduct will skip this stage.
- Details of an adequate warning system for all but the most serious problems. For example – there should be at least one initial written warning and another final written warning before the employee is dismissed.
- A system for ensuring the written recording of all meetings and decisions, and ensuring that they are kept in the person’s personnel file. It’s best to ensure that the minutes of all meetings are made straight away and agreed as soon as possible with the employee.
- Your commitment towards allowing the employee sufficient time for improvement in the case of poor performance. You should also allow for training if necessary.
- Confirmation of the next steps of the disciplinary process if the first (and each subsequent) stage enacted does not resolve the issue. It should be made especially clear that after issuing a final warning, the next offence could end in dismissal.
- Your commitment to give fair warning of all disciplinary meetings. Any disciplinary meeting must be chaired by an impartial person at senior level of management, ideally who has not been involved in the employee’s particular disciplinary case before. If the problem consists of a relationship breakdown between employee and line manager, that line manager must not conduct or chair any meeting or especially any appeal hearing.
- The opportunity for the employee to appeal against any disciplinary action at any stage of the process. Separate meetings must be arranged to hear appeals, and the employee should be informed of every outcome. Again, ideally the person chairing appeal hearings won’t have been involved in any decisions about the initial disciplinary actions. The employee also has the right to be accompanied to any appeal.
Disciplinary cases and grievances are best resolved between employees and employers within the workplace wherever possible. When it is not, employers should consider a mediator or independent third party to help them resolve the issue. The mediator may be internal or external. Conciliation in disputes can also be chaired by Acas.
For help in ensuring your business’s disciplinary procedures company with Acas’ code of practice, and to prevent Employment Tribunal awards against you, talk to our employment lawyers today