DEALING with disciplinary matters is certainly among the most difficult and stressful challenges faced by practice managers. Such matters usually involve either misconduct (deliberate or wilful acts) or performance issues, such as lack of competence or capability.
Misconduct must be investigated thoroughly, including collating evidence and, where applicable, gathering witness statements. Any investigation should take place promptly but care must be taken to ensure it is also thorough. It should concentrate on gathering the facts and not be a "fishing exercise". Ideally, the person conducting the investigation should not be part of the disciplinary process and thought should be given in advance to who is the right person for each stage of the process.
Depending on the nature of the alleged misconduct it may be reasonable to suspend the employee during the investigation. Suspension should only be used in serious circumstances and should be paid and as short as possible. The employee should be called into an investigatory meeting to discuss the evidence and be given an opportunity to explain any mitigating circumstances.
Once the investigation is complete, all the evidence should be reviewed, a decision made regarding further disciplinary action and the employee advised.
In regard to performance issues, it is important to review required standards regularly to ensure that these are achievable and applied consistently. Practices should use regular feedback meetings to keep the employee on track. Should performance start to slip, an informal meeting (with examples) should be organised to discuss what can be done to achieve the required standards. It is important to tackle problems early and decisively, as avoiding difficult conversations will only store up problems for the future.
In dealing with conduct or performance issues it is essential to review practice disciplinary policy and ensure that this is followed, or that at least the ACAS code of practice is being met. Any employee subject to a disciplinary hearing should be informed in writing and the letter should set out:
- The place and time for the meeting
- Who will be in the meeting and their role
- The issues that will be addressed
- In cases of potential gross misconduct – the employee should be advised that the outcome of the hearing may lead to their employment being terminated.
Any supporting documentation, including investigation notes, should be included with the invite letter and the employee should be given sufficient notice to allow time to prepare. Employees have the right to be accompanied at the hearing by a work colleague or trade union representative, who will be allowed to take notes, confer with the employee and address the hearing but cannot answer on the employee’s behalf.
Make sure at the hearing that you are thoroughly prepared with the facts and a list of questions you want to ask and ensure that there is sufficient opportunity for the employee to have their say. Focus on the behaviours or actions that you are concerned about, providing clear examples. Ask the employee if they require further support or training or if there are obstacles to improving performance and the reasons behind the behaviours in question.
Give yourself sufficient time to make a decision after the hearing. You may want to adjourn until the next day and this would certainly be the recommendation if considering a dismissal.
Should the outcome be a warning, this should be confirmed in writing to the employee, including the level of warning being given, how long it will stay on file and the right to appeal the decision. The employee should be advised that future issues may result in another disciplinary hearing and further warnings being issued. Any appeals should be heard within a reasonable timescale and someone impartial should conduct the hearing, with the result confirmed to the employee in writing.
Employees with less than two years’ service do not have unfair dismissal rights; however they can bring a discrimination claim if they feel that their dismissal is linked to a protected characteristic (e.g. age, disability, gender reassignment, race, etc) or if they have raised a statutory provision issue. They also do not need two years’ service to make a claim for wrongful dismissal, which is when the terms of an employee’s contract are broken in the dismissal process.
To avoid such a claim, the practice should ensure that the disciplinary process is not included in or attached to an employee’s contract. Wording in the disciplinary policy should also state that the practice has the right not to implement the disciplinary process in the first two years of service. Best practice for those employees with under two years’ service would always be to have at least one disciplinary hearing and to give the employee a final warning and a chance to improve before dismissal.
Employees with over two years’ service have the right to make a claim for unfair dismissal, and failure to follow the ACAS disciplinary process could result in an award being increased by up to 25 per cent – so it is important that you ensure the correct process is being followed.
Liz Symon is an employment law adviser at MDDUS