DEALING with poor attitude and performance or repeated short-term absence are among the least favourite aspects of a manager’s job as they can often lead to formal disciplinary action against an employee. In addressing disciplinary matters, it is essential that the facts are fully established and that all employees are treated consistently.
Not all matters may result in immediate disciplinary action. For first-time issues, such as time keeping or less serious performance issues, having an informal meeting to discuss areas of concern and advise the employee that their performance will be monitored may be enough.
However, where this approach fails and there are still issues, disciplinary action may need to be invoked. In the first instance, it may be necessary to conduct an investigatory meeting, so that all of the facts are obtained. This may include interviewing and gathering signed witness statements.
Suspension should only be used in exceptional circumstances, either where there is a serious risk to others if the employee remains at work whilst under investigation or in some cases of potential gross misconduct, such as suspected theft. Any suspension period would be paid. There is no right at the investigation stage for the employee to be accompanied, unless stated in your procedures.
Once an investigation has been completed and the matter is progressed to a disciplinary hearing, the employee needs to be advised in writing – stating where and when the hearing will take place, what the hearing is about and, in potential gross misconduct dismissal cases, what the possible outcome of the hearing may be. Any documentation that will be referred to at the hearing should be included with the letter so that the employee has the full information and can prepare their defence. There is no set time on how long an employee should be given between the invite letter and the disciplinary meeting, but they should be given enough time to prepare. Where possible, someone independent, who has not been involved in the investigatory process, should conduct the disciplinary hearing and a note-taker appointed.
At any formal disciplinary hearing, the employee has the right to be accompanied by a work colleague or a trade union representative – not by a solicitor unless in very exceptional cases. The representative may confer with the employee at the hearing and ask questions but cannot answer questions on the employee’s behalf.
At the hearing, the employee should be advised of the issues, concentrating on the actions or behaviours that have caused concern and going through the facts and examples, along with any witness statements. It is important that the employee is given an opportunity to put forward their case and to provide any mitigating reasons for their performance or behaviour.
Once all issues have been discussed, the hearing should be adjourned for all the information to be considered. In cases of possible gross misconduct, it is recommended that the hearing is adjourned overnight. At the re-adjourned meeting, the employee should be advised of the decision verbally and the outcome should then be confirmed in writing. The letter should advise the level of warning given, the timescales of how long the warning will remain on file, the behaviours expected in the future, the consequences if there is no improvement or further misconduct and the right to appeal the decision.
A practice’s disciplinary process and warning levels should be set out in a policy document and it is usual to have the following possible outcomes:
- no sanction awarded
- first written warning
- final written warning
- dismissal – with notice
- dismissal – without notice.
It would be normal to follow this pattern of warnings and if there is no improvement, the employee will eventually have their employment terminated as you work through the process. However, there may be cases where the employee’s conduct is serious enough to jump levels but advice should be sought before making final decisions. Gross misconduct dismissals without notice will only be applicable for serious breaches – such as theft, fighting, being under the influence or serious insubordination.
Dealing with disciplinary issues can be a daunting prospect but carrying out an investigation so that you have all the facts and following the correct process should help alleviate any feelings of anxiety.
Recent articles in the press have highlighted some potential changes in employment law that the Government are looking to introduce, one being a review of the ACAS code on disciplinary procedures to make the dismissal process easier. So watch this space.
Liz Symon is an employment law adviser at MDDUS