How do you deal with a disciplinary issue? Well, unfortunately it does
involve a certain amount of red tape but I see my role as making your life
easier by making sure you don't get tangled up in it. The ACAS code of
practice on disciplinary grievance procedures underpins this whole area and
I would strongly recommend that you go and find yourself a copy of it before you start.
If you end up dismissing someone you need to be able to show that you followed a fair
procedure, if you lose a claim for unfair dismissal and the tribunal finds that your
failure to follow a fair procedure was unreasonable your employee could benefit from
an uplift to their compensation that makes your failure all the more costly for your business.
There are certain practicalities
to bear in mind throughout this process. First of all keep written records or
notes of all steps taken but remember it's very likely that you will need to
give these notes to your employee at some point - so be careful what you
write in them. You and anybody else involved in the process including the
employee needs to maintain confidentiality. You need to act
promptly if there's an issue, don't wait two or three months to deal with
it - it will only make it more difficult. And you need to communicate your
decisions effectively with reasons for any decisions taken. So ask in the first instance
can you deal with it informally? Sometimes a quiet word with an employee can nip
something in the bud before it escalates into something much worse, it's likely
that you can only use this for minor issues and if you do make sure your meeting is
still confidential and private; your employee needs to know what the problem is,
how it has arisen and what action is needed in future - keep note of what is said and send it
to your employee making sure they know a formal process might be followed if the
issue isn't resolved. If you don't think informal action is appropriate or if that
doesn't work you need to investigate the allegations thoroughly.
That's the case even if it's a very clear-cut decision and you think there is
no doubt of guilt you need to establish what the facts are, something might come to
light during the investigation which is an entirely reasonable explanation. The amount of
investigation you need to do will vary depending on the situation but it must
be reasonable in all the circumstances. Mostly, the more serious the conduct, the
more serious the consequences, the more investigation you are going to have to do.
So far as who should conduct it goes, you already need to be thinking at this
stage about separate personnel for each stage. Ideally you would have three
different people: one for the investigation, one for the disciplinary hearing and one for the
appeal so think about who can do each stage right from the outset.
You might also want to think about suspending your employee, it's not a disciplinary
sanction itself but it can sometimes be helpful if you think your
investigation might be hampered by having them in the business or if they might otherwise
be damaging to what's going on. So let's say your investigation decides disciplinary
actions are warranted what does a disciplinary hearing look like? You need to
invite your employee in writing giving as much information as they need to be able to
respond to the allegations against them, they also need to understand what the
consequences could be so if that's a written warning or a dismissal set that
out in the invitation letter as a possibility at this stage. The hearing
itself should not be treated as something quasi-judicial, it's between
you and your employee, you need to set out the case against them and give them a
full opportunity to respond. They are entitled to be accompanied at the meeting either by a work
colleague or a trade union representative, but not by a legal representative.
Further investigation might be needed depending on what comes out of the hearing and if that is
the case you will need to adjourn and reconvene at a later date. The decision itself should be
confirmed in writing giving clear information on whether it's a warning, a dismissal, or if
the employees contract permits it some other sanction like demotion or a pay cut.
Whatever your decision it must be fair and reasonable and based on a genuine belief of
guilt on reasonable grounds. The last stage will always be the appeal stage in case
the employee is dissatisfied with the outcome, the right to appeal should be communicated
in the decision letter with a time frame for lodging their appeal - it should be
conducted by someone who hasn't been previously involved and can either be
done as a review of the decision or a rehearing of all the evidence. If you are
seen to be dealing with issues promptly and transparently your employees are more
likely to continue to work well together with you and the business.