Disciplinary Process
If there are potential disciplinary issues to be addressed with an employee following an investigation the employee should be notified of the allegations in writing and invited to a disciplinary hearing. The invitation should, at least:
- Set out the alleged disciplinary matters;
- Explain the possible consequences;
- Give the date, time and place of the disciplinary meeting; and
- Remind the employee that he has the right to be accompanied at the meeting.
Right to be Accompanied – In addition to rights under the employment contract or Trade Union / collective agreements, Section 10 Employment Relations Act 1999 provides that an employee has the right to be accompanied to disciplinary hearing by a companion. A companion may be a colleague or a Trade Union representative. This right only applies to a meeting at which a disciplinary sanction is to be imposed or confirmed. There is no right to be accompanied to an investigatory meeting. Legal representation at disciplinary hearings is not normally permitted. If an employee suffers from a disability it may be appropriate for him to be accompanied by another person by way of a ‘reasonable adjustment’ to the usual procedure.
Evidence – It is usually advisable that the employee be given the evidence that has been gathering in the course of the investigation, such as witness statements, unless there is a good reason not to for example that an employer has told a witness they can remain anonymous.
Disciplinary Hearing
A disciplinary hearing or meeting with the employee must be held without unreasonable delay. An independent chair person and note taker should be appointed to conduct the hearing and make a record of the meeting.
The purpose of the hearing is to give the employee the opportunity to ask questions and to explain matters from their perspective. They may also wish to submit their own evidence to support what they are saying. If the employee cannot attend the meeting, the employer must normally adjourn the meeting at least once. The ACAS code does recognise some instances in which it may be appropriate to proceed with the meeting without the employee, but these are rare.
If further investigations need to be carried out as a result of matters raised during the meeting then the employer should adjourn the meeting and carry these out. The level of investigation that is appropriate will depend on the circumstances in question.
Outcome
The employer must decide whether disciplinary action is justified. If the allegations are confirmed the employee will be issued with an appropriate written warning or dismissed based on the matters raised.
The ACAS Code recommends administering at least two warnings before dismissing an employee for misconduct unless the misconduct amounts to gross misconduct. Employees should be given at least one chance to improve before being issued with a final written warning.
The decision to dismiss the employee can only be taken by a manager who has authority to do so. The employee must be notified in writing of the dismissal without any unreasonable delay.
Effectively managing the disciplinary process is crucial for maintaining a fair and compliant workplace. Below, we outline the key aspects of managing the disciplinary process, legal considerations, and strategies to ensure thorough and fair handling of disciplinary issues.
Disciplinary policy
The disciplinary process involves a series of steps taken by an employer when an employee’s conduct or performance falls below the expected standard. This process is designed to address and rectify issues while ensuring fairness and compliance with employment law.
Key Components of the Disciplinary Policy
1. Clear Policies and Procedures
– Develop comprehensive disciplinary policies that outline the steps to be taken when an issue arises.
– Ensure these policies are communicated clearly to all employees and included in the employee handbook.
2. Fair and Impartial Investigation
– Conduct a thorough investigation to gather all relevant facts before making any disciplinary decisions.
– Ensure the investigation is impartial and free from bias.
3. Documentation
– Keep detailed records of all steps taken during the disciplinary process, including evidence, meeting notes, and decisions made.
– Ensure documentation is secure and only accessible to authorised personnel.
4. Communication
– Communicate clearly and promptly with the employee throughout the disciplinary process.
– Provide written confirmation of decisions and the reasons behind them.
Legal Considerations in the Disciplinary Process
1. Employment Contracts and Policies
– Ensure disciplinary procedures are clearly outlined in employment contracts and company policies.
– Regularly review and update contracts and policies to reflect any changes in legislation or company standards.
2. Fair Treatment
– Treat all employees fairly and consistently during the disciplinary process.
– Avoid any actions that could be perceived as discriminatory or retaliatory.
3. Right to Representation
– Inform employees of their right to be accompanied by a colleague or trade union representative during disciplinary meetings.
– Ensure this right is respected and facilitated.
4. Data Protection
– Comply with the General Data Protection Regulation (GDPR) when handling personal data related to the disciplinary process.
– Keep disciplinary records confidential and secure.
Steps to Manage the Disciplinary Process Effectively
1. Develop and Communicate Disciplinary Policies
– Create clear and comprehensive policies outlining the disciplinary process.
– Communicate these policies to all employees and ensure they understand their responsibilities.
2. Identify the Issue
– Identify the conduct or performance issue that needs to be addressed.
– Gather initial information to determine if formal disciplinary action is warranted.
3. Conduct a Fair Investigation
– Appoint an impartial investigator to conduct a thorough investigation.
– Gather all relevant evidence, including witness statements and documentary evidence.
– Ensure the investigation is conducted promptly and fairly.
4. Invite the Employee to a Disciplinary Hearing
– Provide the employee with written notice of the disciplinary hearing, including the time, date, and location.
– Outline the allegations and provide any evidence that will be discussed.
– Inform the employee of their right to be accompanied by a colleague or trade union representative.
5. Hold the Disciplinary Hearing
– Conduct the hearing in a fair and impartial manner.
– Allow the employee to respond to the allegations and present their case.
– Consider all evidence and arguments before making a decision.
6. Make a Decision and Take Action
– Make a decision based on the evidence and the severity of the issue.
– Take appropriate disciplinary action, which may include a verbal or written warning, suspension, demotion, or dismissal.
– Provide the employee with written confirmation of the decision and the reasons behind it.
7. Right to Appeal
– Inform the employee of their right to appeal the decision.
– Outline the process for submitting an appeal and the timeframe within which it must be done.
– Ensure the appeal is heard by an impartial person not involved in the original decision.
8. Monitor and Review
– Monitor the situation to ensure the issue has been resolved.
– Review the disciplinary process regularly to ensure it remains fair and effective.
Handling Specific Situations
1. Gross Misconduct
– Address allegations of gross misconduct promptly and seriously.
– Ensure a thorough investigation is conducted before making a decision.
– Consider suspension with pay while the investigation is ongoing.
2. Performance-Related Issues
– Address performance-related issues through a fair and supportive process.
– Provide clear performance expectations and offer additional training or support if needed.
– Use performance improvement plans to set clear goals and review progress.
3. Discrimination and Harassment
– Handle allegations of discrimination or harassment sensitively and confidentially.
– Ensure a safe and supportive environment for discussing sensitive issues.
– Take appropriate disciplinary action if the allegations are substantiated.
4. Attendance Issues
– Address attendance issues through a fair and consistent process.
– Identify any underlying causes of absenteeism and offer support where possible.
– Use attendance improvement plans to set clear expectations and monitor progress
Conclusion
Managing the disciplinary process effectively is essential for maintaining a fair and compliant workplace. Our team of experienced employment law experts is here to provide you with the guidance and support you need to manage the disciplinary process efficiently and legally.
