Disciplining employees fairly

Nadine Dorries caused a furore when she abandoned her duties as an MP to go into the jungle and appear on a celebrity television program. With much debate in the media about appropriate sanctions, employers often share similar uncertainties and concerns about how best to proceed with problem employees, such as in cases of frequent absenteeism.

Some employers are reluctant to address problems with employees and put up with unacceptable conduct or substandard performance, sometimes for many years, until the employee resigns and solves the problem by default. However it is possible to deal with such matters fairly, without risking costly employment tribunal claims.

Disciplinary procedures and the ACAS code

In an unfair dismissal case, the employment tribunal will consider if the employer’s decision was reasonable and whether it followed a fair procedure. It must take account of any relevant provisions in the ACAS Code of Practice on Disciplinary and Grievance Procedures. The ACAS code is intended to help employers and employees deal effectively with misconduct and poor performance and sets out the steps to be followed. If the employer or employee unreasonably fails to follow the ACAS code, compensation can be increased or reduced by up to 25 per cent. If you fail to follow your own disciplinary procedure, the tribunal can take that into account in deciding if any dismissal was unfair. The employee could also claim for breach of contract, if the procedure is part of his contract of employment.

Formal action

You should first consider whether you need to take formal action under your disciplinary procedure. For minor offences, such as poor timekeeping, it will often be better to speak to the employee informally and resolve the problem quickly. For more serious matters or where the informal approach does not work, you should consider taking formal action.

Investigation, hearing, decision and appeal

You must carry out a reasonable investigation, which will usually involve interviewing the employee and other witnesses and collecting any documentary evidence. You should not take disciplinary action after an investigatory meeting and there should always be a disciplinary hearing first. In serious cases, you may want to suspend the employee while the investigation takes place. This must be on full pay so that the suspension is not itself a disciplinary action. It should be as brief as possible and should be kept under review. You should only suspend where there is a real risk of the employee committing a further offence or it is not possible to investigate the allegation with the employee at work. In all cases, a risk assessment should be carried out before the employee is suspended.

Before the disciplinary hearing, the employee must be informed in writing of the case against him, told what the possible consequences will be and given copies of any evidence, such as statements made by witnesses, so that he can prepare properly for the hearing. The letter should set out the date, time and location of the hearing and explain that the employee has the right to be accompanied by a colleague or a trade union representative. The hearing should not be conducted by the person who carried out the investigation and a second person should attend to take notes and act as a witness.

At the hearing, you should explain the allegations and go through the evidence. The employee should then answer the allegations and put his own case. He should have an opportunity to ask questions, present evidence and call witnesses. If new evidence comes to light during the hearing, you should adjourn it while you carry out further investigations. It is crucial to keep a written record of all meetings and the reasons why decisions were made in case this is needed later.

Following the hearing, you should take some time to consider what the employee has said, whether the allegations should be upheld and what the appropriate sanction should be. In deciding on the penalty, you should take into account:

• the employee’s previous disciplinary record and whether he has any current warnings in force;
• the penalty you have imposed in similar cases in the past;
• any mitigating factors, such as health problems or provocation;
• the nature and seriousness of the offence – an employee should not be dismissed for a first offence unless it is very serious, such as theft or fighting at work; and
• any rules or guidance in your disciplinary procedure as to what penalties will apply.

If you are considering dismissal, you should also think about alternatives such as demotion, redeployment or a final written warning. You should write to tell the employee your decision and the reasons for it. If you are giving a formal warning, you should state what improvement is required and the timescale, as well as how long it will stay in force. Your letter must set out the employee’s right to appeal, the deadline and should ask the employee to set out the grounds for his appeal in writing.

For more information please contact David Hacker.