A disciplinary process is a formal way for an employer to deal with an employee’s poor conduct. An employer is required by law to have a disciplinary process, and the best place to keep this process is in a Staff Handbook.
In some cases, it might be suitable for an employer to consider dealing with a conduct issue informally, e.g. by just talking to the employee or agreeing improvements in conduct. However, in other cases, if the misconduct is serious, a formal disciplinary process will be the most appropriate way of dealing with the situation.
Misconduct is when an employee’s conduct falls below the standard expected of them by their employer. Usually, an employer will include examples of what they consider to be misconduct in their disciplinary policy. The best place to keep that policy is in a Staff Handbook.
When misconduct is very serious it can be considered gross misconduct. Common examples of gross misconduct include things like theft, physical violence, acts of discrimination, fraud, serious negligence or serious breach of health & safety rules. Often, an employer will look to dismiss an employee who has committed gross misconduct. Read more here about dismissals.
Firstly, it will ensure that an employee gets a fair hearing and has the chance to explain their side of the story. Secondly, it will help the employer defend any potential claims down the line, because for example, where an employee is dismissed following an unfair or defective disciplinary process, it can potentially result in the whole dismissal being unfair. It can also potentially increase an employee’s compensation in a Tribunal claim.
Where an employer has its own written disciplinary policy, it should follow the process set out in that policy when dealing with any alleged misconduct. However, the starting point will always be to carry out some investigation into the situation first to get as much information as possible about the alleged misconduct.
The employer needs to find out what information they reasonably can about the alleged misconduct. The employer’s disciplinary policy may also have some specific requirements for how the investigation should be carried out, for example, the holding of an investigation hearing. At the end of the investigation stage, the employer needs to be in a position to decide whether the case should move ahead to a disciplinary hearing.
Ideally someone senior and experienced, but certainly someone who is independent of the issues involved with the alleged misconduct. The person who carries out the investigation should have no involvement with any resulting disciplinary process or hearing.
Sometimes an employer will suspend an employee until the outcome of an investigation or disciplinary process. However, suspending an employee can be risky and should be an employer’s last resort. Examples of exceptional situations which might justify suspension include where an employer needs to protect other employees or the individual under investigation.
The employee should be told what the allegations against them are and be given copies of the evidence collected at the investigation stage. When being invited to a disciplinary hearing, the employee should be told about their right to be accompanied by a colleague or trade union representative and about what possible outcomes there may be following the hearing.
The hearing is the chance for the employer to explain the allegations and for the employee to give their side of the story. The employer can either give the employee their decision at the end of the hearing or they can say that they’ll confirm it in writing. The decision could involve the following:
Yes. An employer should check back to see whether their workplace has dealt with a similar situation before, because treating an employee in a way that’s inconsistent with similar previous cases could expose the employer to the risk of a Tribunal claim.
Yes, an employee should be given the right to appeal the decision. If they do, an appeal hearing should be held, with the employee again having the right to be accompanied by a colleague or trade union representative. The appeal hearing should be conducted by someone independent of the disciplinary process (and ideally by someone more senior than the person who held the disciplinary hearing).
If the grievance is about something completely unrelated to the disciplinary case, the employer should pause the disciplinary process to deal with the grievance first. However, if the grievance is about something closely linked to the disciplinary case, an employer may decide to simply treat the employee’s grievance as part of their defence to the disciplinary case.
An employer should try to re-schedule the hearing at least once. However, there will come a point where, unless an employee has a good enough reason to be absent, the employer will have to hold the disciplinary hearing without the employee being there and just confirm their decision in writing.
If you need any advice on disciplinaries, please contact a member of our employment law team in confidence here or on 02920 829 100 for a free initial call to see how they can help.
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