The disciplinary process is often seen as the providing of a punishment administered to employees, and not so much seen as a way of encouraging their improvement. It’s not unheard of that different companies incorporate separate procedures for dealing with specific incidents of conduct and those capabilities, and that’s where the confusion lies. The word disciplinary has come to be a bad thing.
As it stands, legislation states that an employee is to receive a written statement of employment within a 2month period of starting the job. This statement should include disciplinary rules, and the route of appeal should the employee be dissatisfied with the decision.
It’s crucial that employers are fully aware of the legal disciplinary rules. They should be aware of both the laws associated with disciplinaries, as well as what is called unfair dismissal. There needs to be an understanding of the codes of practice regarding both disciplinary and grievance procedures, and the steps to be taken by both the employer and the employee.
What needs to be included in a disciplinary procedure
When a disciplinary is actioned the involvement of the following should apply:
- Include the name of the employee involved
- The details of the disciplinary should be in writing
- The employee should be aware of the reasons behind this action
- There should be supporting evidence
- Information should be clear and concise
- There should be no discrimination
- Matters should be resolved without delay
- Matters should be confidential
- Employees should be clearly informed of disciplinary procedures
- Be clear on who has the authority to take numerous forms of disciplinary action
- Inform the employee they have the right to be accompanied to any meetings about their disciplinary
- The employee has the right to their say their piece before a decision is made
- You must ensure that the employee has a clear understanding that the first breach of discipline does not mean dismissal unless its a case of gross misconduct
- A full management investigation is to be carried out before a decision becomes an action
- Employees have the right to appeal
- Employees have the right to receive a full explanation before a sanction
Conducting a disciplinary action requires a fair, careful and reasonable approach. Depending on the severity of the matter, it may require a matching investigation, meaning the more serious the incident the more thorough it needs to be. In these situations, the manager is required to make arrangements to carry out enquiries, investigations and proceedings.
These need to be carefully conducted to avoid making incorrect and rash decisions based on anything other than fact. The manager needs to be fair, firm, unbiased, open minded and non judgemental when dealing with disciplinary issues.
Failing to apply the same rules to cases with similar or the same facts can impact employees, so make sure you’re treating everyone fairly.
It’s imperative the manager makes it clear to the employees they have read and understood the businesses practice for dealing with unsatisfactory performance and misconduct, so that employees know they are acting within company guidelines and in accordance with the law.
People and circumstances involved
The business needs to remain consistent in their process, but those involved and individual circumstances need to be considered. Details such as length of service to the business and current warnings can be relevant to a disciplinary. Make sure you are considering the whole picture.
With that in mind, there should be zero discrimination on the grounds of the following:
- Race (including colour, ethnicity, nationality and national origins)
- Sexual orientation
- Gender reassignment
- Religious belief
- Philosophical belief
- Maternity leave
- Marital status
- Political opinion
So if a manager concludes unsatisfactory performance is due to a lack of ability that it turns out is due to a disability, management need to consider that the Disability Discrimination Act 1995 is now relevant, and provisions and reasonable adjustments must be made.
Following a disciplinary action, suspension is sometimes warranted. This gives the employer time to investigate the alleged misconduct. Usually the employee is entitled to the same normal rate of pay. Usually, a suspension will only happen if there’s a risk to the employer’s responsibilities or property.
Particular care is to be taken before you suspend an employee. You should think about whether the employee can take another form of absence or annual leave or transfer the involved person to another site or station. This all depends on the situation at hand.
Clear communication is key here, so do not underestimate its importance. When it comes to pay, suspension pay should be reviewed carefully and in a reasonable way.
Suspension without pay
The decision to suspend an employee without pay is allowed, but this needs to be a contractual right. Without that, there’s a chance you will face a Breach of Contract claim from the employee.
Proper statutory procedures need to be followed, and you should not use a suspension as a disciplinary penalty if your procedures state otherwise, or else you haven’t given your employee enough warning of the potential consequences of their actions.
The employees right to be accompanied at the disciplinary hearing
If disciplinary action results in a hearing, your employee has the right to be accompanied by a work colleague or trade union official.
This right is very important, as the result of the meeting could be a formal warning, suspension without pay, demotion, dismissal, a confirmation of warning, or a confirmation of other actions, such as an appeal hearing.
If you’re having an informal discussion or counselling session, your employee does not need to be accompanied.
This is only on the basis there are no formal warnings issued within the discussion. You must be sure you are differentiating between meetings and investigations versus disciplinary hearings. Again, you must always communicate effectively to your employees.
If it becomes clear that disciplinary action is to come from the meeting, you must end it and set up a separate formal hearing, for which the employee has the right to be accompanied.
Right of the companion
The companion in the hearing will be allowed to confer with the employee, put forward the person’s case, sum up the case, respond on behalf of the employee to express views, and answer questions on behalf of the employee if the employee has agreed to it.
If the employer fails to allow someone to accompany the employee, that employee may complain to a tribunal.
What is the statutory stage three disciplinary procedure?
The full procedure can be laid out simply in three steps.
- A written statement of the allegation and what the employer’s follow up actions to this will be.
- A meeting that includes a discussion of the situation and decision.
- Offering the right to appeal.
There is a level of flexibility to how formal these procedures can be, but it is imperative that the statutory dismissal and disciplinary procedures are followed, or else you will end up in a tribunal.
For that reason, you need an airtight and legally binding document to present to your employees when they start working for you so that you can prove they knew the consequences of anything they did that might have triggered the disciplinary process.
Why choose JMR?
If you’re having an issue with a disciplinary process or you need to make sure your documents are airtight, JMR Solicitors can help. Call 0161 491 3933 or email firstname.lastname@example.org.