Disciplinary procedures deal with difficulties arising in the employment relationship.
They are sometimes the best way for an employer to tell an employee when something is wrong.
It allows them to explain clearly what improvement is needed and should give an employee the opportunity to put forward their side of the situation.
Mark Serby, director and head of employment law, explores the procedures, policies and practices involved.
“The prospect of conducting a disciplinary is rarely an enticing one for employers and employees.
“This makes it essential to have a robust disciplinary procedure in place so that there are a clear set of guidelines to follow in the event of a potentially difficult situation.
“Employers use disciplinary procedures to tell employees that their performance or conduct isn't up to the expected standard and to encourage improvement.
“Employees can be dismissed lawfully. Generally, employers must ensure that they have a fair reason for dismissal, follow a fair procedure and act fairly and reasonably - so as to avoid unfair dismissal.
“They must comply with the terms of the employment contract, particularly with regards to the employee's notice period to avoid wrongful dismissal, and must not discriminate unlawfully.
“Employees are entitled, in some cases, to written reasons for dismissal. There must be a fair reason for the dismissal.”
There are five potentially fair reasons for dismissal:
- Conduct – this could be a single act of misconduct or a series of less serious acts.
- Capability or qualifications - including poor performance, ill-health and formal qualifications
- Redundancy – this includes workplace closure, business closure, or a reduced need for employees.
- Illegality - where continuing to employ the employee in the position they hold would contravene a statutory restriction (for example, because of their immigration status)
- "Some other substantial reason" (SOSR) - a catch-all category of potentially fair reasons that do not fall under the other categories. This may include dismissals for failure to agree to changes to terms and conditions, pressure from third parties such as clients, and business reorganisations falling short of a genuine redundancy situation.
Mark said: “I am often asked whether a HR manager can conduct a disciplinary hearing.
“My advice would be that it would be important that the HR manager had no involvement in advising the investigating officer and that they would not be involved in advising in relation to any appeal.
“Their role in relation to the incident in question would need to be limited to hearing and deciding the disciplinary. This can be difficult in a small HR team. In addition, the wider HR team would need to refrain from interfering with their colleague's decision.
“Small employers also often struggle to find separate people to carry out the investigation and disciplinary process.
“In relation to dismissals in misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing.
“Therefore an employer would have to be able to demonstrate that it was not practicable for different people to be involved in the two stages.
“Failure to comply could lead to an uplift in any Employment Tribunal award for unfair dismissal by up to 25 per cent.
“An employer will be judged by the objective standards of the hypothetical reasonable employer and, ultimately, whether a particular course of action is reasonable will be a matter for an Emplyment Tribunal to determine in all the circumstances of a particular case.”
Sometimes, employers have to deal with grievances during disciplinary proceedings.
Mark added: “Where an employee raises a grievance during a disciplinary process, the disciplinary process may be temporarily suspended in order to deal with the grievance.
“Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently.”
Can an employer dismiss an employee during their probationary period without following its disciplinary procedure?
Mark said: “In these circumstances, it is likely to be advisable to explain the problems to the employee and give them an opportunity to improve.
“If it doesn't work out their contract can be terminated. This is, after all, what the probationary period is for.
“If you have a procedure for dealing with poor performance, this should be followed in dealing with the employee, in particular, how you would usually set out problems and provide opportunities for improvement.”
Should an employer obtain a medical report to confirm whether an employee suffering from stress is fit to attend a disciplinary hearing?
Mark said: “An employer should ask themselves whether the stress or anxiety caused or contributed to the poor performance in the first place.
“Where this is a possibility, an employer may wish to consider whether it is appropriate to suspend the disciplinary hearing or even drop it entirely, and then assess the situation using the HSE’s Stress Management Standards, providing support for the employee as appropriate.
“If an employer is concerned that the disciplinary hearing may add to the employee’s stress or anxiety, medical advice may be obtained as to whether the employee is fit to attend a disciplinary hearing, and if not, when they might be.”
Can a lenient disciplinary penalty be increased on appeal?
Mark said: “An appeal must never be used as an opportunity to punish the employee for appealing the original decision, and it should not result in any increase in penalty, as this may deter individuals from appealing.
“However, ultimately the question for the tribunal would be whether the employer's decision to dismiss was within the band of reasonable responses.”
Set the standards and communicate
Mark added: “In order to operate effectively, organisations need to set standards for performance and conduct – and staff need to know what these are.
“Cases of minor misconduct or unsatisfactory performance are usually best dealt with informally. A quiet word is often all that is required to improve an employee's conduct or performance.
“However, where formal action is needed, promptness, fairness and consistency are key to investigations to gather and establish all the facts of the case.”
For further information on disciplinary procedures and other employment matters contact Mark Serby at at [email protected] or on 0114 224 2048
