Disciplining an employee is stressful for any employer, but especially so for those who run a small business without a dedicated and experienced HR person.
If disciplinary procedures against an employee become necessary, you must protect yourself from an Employment Tribunal claim due to incorrect or unfair processes being followed.
In this article, we outline the process for disciplining an employee in a way that ensures you are complying with the Employment Rights Act 1996, the Advisory Conciliation and Arbitration Service (ACAS) Code of Practice, and other relevant employment laws.
It is important to emphasise that before you consider formal disciplinary procedures you should attempt to resolve any issues informally. Of course, this may not be possible, especially in cases involving gross misconduct, however, mediation can be highly effective in resolving matters without resorting to disciplinary and grievance procedures.
Often simply raising your concerns with an employee’s conduct is all that is needed to remedy the matter.
If you decide that formal disciplinary and grievance procedures are required, being open and transparent is vital to ensuring a legally valid process is undertaken. The last thing you want is to have your own conduct under scrutiny.
Below are the stages of a legally compliant disciplinary procedure.
Investigating the misconduct or complaint in an employee disciplinary procedure
The first stage of the disciplinary procedure is to gather all the information required to establish the facts of what has happened. If appropriate, this may entail requesting a meeting with the employee during which you can ask questions.
This meeting should not be used to decide on the alleged misconduct; it is purely an opportunity to ask questions. At this stage, you are not formally disciplining the employee, you are simply establishing the facts of the matter. If following the investigation stage, there is a case for disciplining, you should write to the employee outlining the details of the specific concerns and provide details of a meeting to discuss the matter further.
>> Remember, the employee has a right to be accompanied by a support person to such a meeting, and this should be explained in the letter.
In cases of gross misconduct, you may need to suspend the employee on full pay. You can find out how to do this legally in our article Key things you need to know before suspending an employee.
Conducting a disciplinary meeting
The disciplinary meeting should be planned carefully to ensure that all the necessary information is presented clearly and transparently and in a way that is fair to both sides.
Once you have laid out the details of the misconduct or complaint and the evidence you have gathered, you must then allow your employee the opportunity to respond with their version of events.
They may wish to bring documentary evidence to the meeting and request colleagues to attend as witnesses. You or your employee may wish to record this meeting for later review (which requires mutual consent), however, this is not recommended as it can make the attendees feel uncomfortable.
It is often better to have a neutral note-taker capture salient points and for these to be circulated to all attendees after the meeting. This ensures that a correct documentary version of the meeting exists, on which the employee or employer may later rely.
Deciding on the matter and disciplinary outcomes
When deciding on a disciplinary matter your decision must be based on the facts to hand. If the employee does not attend the meeting or any subsequent meetings arranged, then you will have to decide based on the evidence you have, without full input from the employee. This comes with risks and should only be done after taking advice from an Employment Law Solicitor.
If misconduct is deemed to have occurred then you can either issue a first formal written warning, or if severe enough (i.e. the misconduct could have or has had a serious detrimental impact on your business) a final written warning; the difference being that under the latter, the employee only has one more chance before potentially being dismissed.
If you determine what has happened constitutes gross misconduct, you may consider dismissing the employee without a first or final warning; such misconduct might include acts of violence, theft, or gross negligence. Again, due to the risks of an unfair dismissal claim, automatic dismissal should not be done without first seeking legal advice.
The employee’s right of appeal in a disciplinary or grievance procedure
In some cases, your employee may not agree with your decision, perhaps believing that no wrong was done, or agreeing that an error was made, but your final decision is too harsh. In such cases, they have the right to appeal, however they should let you know the grounds for doing so in writing. Any appeal procedure must be undertaken by a senior member of staff who was not involved in the original procedure and therefore can act impartially. Once a final decision is made following the appeal, you will need to write to the employee to inform them of the appeal outcome.
Wrapping up
Disciplinary and grievance procedures should always follow best practice and be based on the ACAS Code of Practice. The more you follow due process, ensuring openness, transparency, and fairness, the greater your chance of avoiding an unfair dismissal claim. Furthermore, if an unfair dismissal claim is pursued and the employee is successful, following the ACAS Code of Practice will mitigate the risk of the Employment Tribunal uplifting any compensation award by up to 25%, which is the penalty for not applying the Code.
Below are three tips for conducting a compliant disciplinary procedure:
- work with an experienced Employment Law Solicitor and obtain legal advice on every step of the process to mitigate the risk of an Employment Tribunal claim
- make sure that your employment contracts set out your disciplinary and grievance processes and procedures
- keep meticulous records of the investigative and disciplinary processes you follow
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