As an employer, one of your most important responsibilities is establishing and adhering to a clear disciplinary procedure. Disciplinary procedures not only ensure that you address any issues relating to an employee’s capability or conduct fairly and consistently, but also significantly mitigate the risk of you facing an unfair dismissal claim.
Here, our HR experts discuss what a fair and effective disciplinary procedure should include, where you should keep it, and the circumstances in which you should follow it.
Call us now on 01491 598 600 or email us on cw@gaphr.co.uk and we will be delighted to help you.
What Should Your Disciplinary Process Involve?
The ACAS Code of Practice: Disciplinary and Grievance Procedures is a set of guidelines that outline the steps an employer should take when dealing with disciplinary matters. The provisions of the code are the absolute minimum an employer should include in their disciplinary procedure. However, the overarching principle is that employers must approach disciplinary matters fairly, and the code recognises that factors such as the size and resources of the employer can be taken into account. Some employers base their disciplinary processes entirely on the code. Others develop their own disciplinary procedure based on the statutory minimum but tweak it to reflect the reality of their business or enhance their employees’ rights.
According to the code, your disciplinary procedure should, at the very least, include the following steps:
- Establish the facts of each case
- Hold an investigatory meeting if necessary
- Inform the employee of the problem
- Hold a disciplinary meeting
- Inform the employee of their right to be accompanied at the meeting
- Decide the outcome
- Provide the employee with an opportunity to appeal
Failing to follow the code does not in itself render you liable for unfair dismissal. However, if your employee issues proceedings against you, the Tribunal may adjust any award by up to 25% if it considers your failure unreasonable. Conversely, if the employee did not adhere to the code, the Tribunal may reduce their damages award by up to 25%.
Where Should You Keep Your Disciplinary Procedure?
The key requirements for employers in the context of disciplinary procedures is that the procedures are in writing, and readily available to all staff. Most businesses fulfil these requirements by including the disciplinary processes in, or appending them to, their employment contracts. You should be aware, however, that doing so may give rise to a breach of contract claim as well as proceedings for unfair dismissal if you fail to follow the disciplinary procedure. You might also include the disciplinary procedure in your staff handbook.
When Should You Use Your Disciplinary Procedure UK?
In practice, employers use their disciplinary procedures in two main situations: When an employee is underperforming and when there are concerns regarding an employee’s conduct.
1. Capability/Performance Issues
Capability issues refer to cases where an employee appears incapable of performing their role to a satisfactory standard. Whilst employers can lawfully dismiss an employee based on poor performance, you must follow a fair disciplinary procedure before doing so.
Crucially, you must give the employee an opportunity to improve their performance and meet the expected standards. This may necessitate you providing additional training and support where appropriate and giving the employee enough time to make the necessary improvements before taking any further action. Typically, this involves drawing up a performance improvement plan for the employee detailing the relevant targets and review times. Expert HR specialists like ours can assist you in preparing effective performance improvement plans that will not only give your employee the best chance of becoming a valued team member, but also withstand scrutiny if you ultimately dismiss the employee and they bring an unfair dismissal claim.
If the employee’s performance remains below that expected of them once you have followed an appropriate disciplinary procedure, you may be justified in dismissing them. However, you should always take specialist advice from HR experts like GAP HR before proceeding with any dismissal to ensure you act within the law.
2. Conduct Issues
Employee misconduct refers to unacceptable behaviour that may harm your business. Examples of the types of behaviour that may constitute misconduct include the following:
- Persistent lateness
- Abuse of the business’s computer systems or internet policies
- Bullying
- Theft or other criminal offences
- Violence
Employee misconduct can be a lawful reason for dismissing an employee. However, before doing so, you must follow a fair disciplinary process. Even in cases involving gross misconduct, such as theft and violence, that may permit you to dismiss an employee with immediate effect, you must follow a proper disciplinary procedure and thoroughly investigate the alleged wrongdoing. If you don’t, you may face an unfair dismissal claim.
External HR specialists like us can be invaluable when dealing with allegations of employee misconduct. Not only will we work with you to ensure the disciplinary process you follow is beyond reproach, but we will also help you manage any fallout from the misconduct amongst other employees, stakeholders or external parties.
Call us now on 01491 598 600 or email us on cw@gaphr.co.uk and we will be delighted to help you.
