All employers should have published disciplinary and grievance procedures, cross referenced by employment contracts and summarised in the employee handbook. Employers are strongly advised to comply with the ACAS code on handling disciplinary cases and dismissals, as non-compliance is likely to attract an uplift to any penalties later imposed by an employment tribunal.
If an employee is to be disciplined for misconduct, or receive a warning for poor performance, they should be given a copy of the disciplinary procedure when being invited to attend the hearing. Under the ACAS code the employee also has a right to call and question witnesses in some circumstances.
In very brief summary and for our purposes here, as a minimum, the disciplinary process should include:
- A proper investigation of the facts should precede a decision to invoke the formal disciplinary procedure.
- Good notes should be taken of meetings & investigations
- If progressing to a disciplinary hearing a letter should be sent to the employee clearly stating the allegation/concern to be discussed & inviting them to a hearing to discuss the matter. The letter should make plain what the potential outcome could be (e.g. the level of disciplinary warning or whether dismissal is possible), should include a copy of the disciplinary procedure (or refer the employee to where they can easily locate a copy), and should include any information that will be relied upon to support the allegation/concern.
- If the employee requests a companion to be present (colleague or trade union official) this must be allowed, and the companion must be allowed to participate fully at the hearing, but cannot answer questions on behalf of the employee.
- The manager chairing the hearing must make decisions fairly, objectively and consistently having considered all of the evidence and the statements of the employee and their companion.
- The decision should be summarised in writing, informing the employee of the right of appeal, and when they should lodge an appeal by.
- The appeal hearing should ideally be heard by a different manager (usually more senior) unconnected with the case. This may not be possible in very small companies.
myHRdept will guide HR Outsource customers throughout the whole process, and can attend site to help or even chair investigations or hearings. Our HR18 and HR24 packages include 1 or more site meetings per annum for this purpose, other customers may choose to pay for a site visit & non myHRdept customers can obtain support under our HR Projects service.
Typical employment law pitfalls
Poor or no investigation (or no documents to support), procedural flaws in handling the disciplinary process, inconsistent treatment of employees in similar circumstances, unnecessarily harsh sanctions, intimidatory style in disciplinary hearings, failure to allow companion to be present or participate, evidence that the employer has prejudged the outcome of the disciplinary process (e.g. having a pre-prepared warning letter to give to the employee at the end of the hearing), using the disciplinary process as a convenient way of getting rid of an employee for other reasons, failing to allow an appeal etc.
It is important to remember that even if a disciplinary outcome is justified, if there are procedural flaws, this will make the decision automatically unfair. Thus knowing and adhering to your own processes and procedures is of paramount importance.
If you’re thinking of outsourcing your HR, payroll or employment law needs, why not contact myHRdept? Call us on 01628 820515, email us at firstname.lastname@example.org to discuss your requirements, or contact us via our website and we’ll call you back.