Disciplinary procedure for Employers

For both employers and employees, it is important that the Disciplinary Procedure is set out in either the Contract of Employment or the Staff Handbook. This demonstrates the procedure that will be followed, promotes clarity for all concerned and demonstrates fairness.

We recommend that any procedure reflects the ACAS Code of Practice. Why is it important to follow the ACAS Code? It can avoid a finding of unfair dismissal. The ACAS Code was introduced to help businesses and employees deal effectively with issues of alleged misconduct or poor performance.

When deciding whether an employee has been unfairly dismissed for misconduct or poor performance, an Employment Tribunal will consider whether the business has followed a fair procedure, and will take the ACAS Code into account in assessing this. If an employee’s claim is successful, but either the business or the employee has failed to follow the ACAS Code, the level of compensation awarded can be affected:
  • If the business unreasonably failed to follow the Code, the Employment Tribunal 
    may increase the employee’s compensation by up to 25%.
  • If the employee unreasonably failed to follow the Code, the Employment Tribunal 
    may reduce their compensation by up to 25%.

The Procedure
The ACAS Code sets out a disciplinary procedure, which should be followed the terms of which should be referred to in a Contract or Staff Handbook.

1. Investigate the issues
  • The employer must carry out a reasonable investigation of the issue, (for
     example, by conducting an investigatory meeting with the employee under
     investigation). Any investigatory meeting should not result in disciplinary
     action without a disciplinary hearing taking place first.
  • If paid suspension is necessary during the investigation, it should be as brief as
    possible and kept under review. The business should clarify that this is not in
    itself a form of disciplinary action.

2. Inform the employee of the issues in writing
  • If, following the investigation, it is found that there is a case to answer. The
    employer should notify the employee in writing of the alleged misconduct or
    poor performance and its possible consequences in sufficient detail to enable
    them to respond at a disciplinary hearing. Any written evidence, (for example,
    witness statements), should be provided to the employee.
  • The notification should set out details of the disciplinary hearing, for example,
    the time and place of the disciplinary hearing. The disciplinary hearing should 
    be held without unreasonable delay. However, the business must ensure the
    employee has reasonable time to prepare their case.
  • The employee should be informed that they are entitled to be accompanied at
    the disciplinary hearing by a work colleague or union representative.

3. There must be a disciplinary meeting or hearing
  • The employer should not make a decision to dismiss or take other disciplinary
    action without a disciplinary hearing or meeting taking place first.
  • If the employee is persistently unable or unwilling to attend, without good
    reason, the business is entitled to hold the meeting or hearing in their absence
    and make a decision on the available evidence.
  • Either side should give advance notice of any witnesses they intend to call.
 
  • At the hearing:
    - The employer should explain the allegations and go through the evidence
    - The employee should be allowed to set out their case and answer the 
      allegations
    - The employee should have a reasonable opportunity to ask questions, present 
      evidence, call relevant witnesses and raise points about any information
      provided by the business’ witnesses.

4. Inform the employee of the decision in writing
After the hearing, the decision should be sent to the employee in writing without unreasonable delay. Written warnings should set out:
  • The nature of the misconduct or poor performance.
  • The improvement required.
  • The timescale for improvement.
  • How long the warnings will remain current.
  • The consequences of further misconduct (or failure to improve) within that period.
  • The employee’s right to appeal the decision and the procedure they need to
    follow to do so.

5. The employee has a right of appeal
• If the employee feels the disciplinary action against them is unjust, they should 
  appeal in writing, specifying the grounds of their appeal.
• If they bring a tribunal claim without appealing, any compensation they are 
  awarded may be reduced.

Practical steps for businesses to take to improve their disciplinary procedures
  • Employers should therefore ensure that there is a disciplinary procedure set out in
    the contract of employment or that the contract refers to the Disciplinary
    Proceedure and where that is detailed, ie Staff Handbook.
  • Encourage managers to manage conduct and performance issues quickly and
    informally before they get to a formal disciplinary stage.
  • All issues should be investigated thoroughly. Even if the employee has attended
    an investigatory interview, always hold a disciplinary hearing once all the
    evidence is available, and allow the employee to put their side of the story before
    making any decision.
  • Keep detailed written records, including minutes of any meetings & encourage
    the employee to sign any minutes as being a true record.
  • Communicate decisions effectively and promptly, setting out reasons.

If you require advice regarding any disciplinary issues at your business or your employment contracts, please contact Katie Kearns on 02476 553181 or via email.