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Discipline / Dismissal

How should employers conduct disciplinary action?

In conducting disciplinary action employers should follow a properly drafted disciplinary policy, as well as the ACAS Code of Practice for disciplinary and grievance procedures which sets out the basic requirements of fairness and reasonable behavior which apply in virtually all disciplinary cases. The Code is not directly enforceable, but a failure to follow it by an employer or employee may result in an increase or reduction (as the case may be) of up to 25% in any Tribunal award.

Although an employer should apply the timetable in its disciplinary procedure, where appropriate this can be varied as circumstances require. Consent to this should be obtained if possible. Fairness to the employee and the requirement to conduct a timely procedure can be balanced with practical requirements if appropriate.

When is disciplinary action appropriate?

This is a matter for the employer’s discretion having regard to the terms of the contract of employment and any disciplinary procedure, as well as the standards of conduct and performance an employer has maintained in the past and wishes to maintain in the future.

When should an employer suspend?

The decision to suspend should not form part of the disciplinary process. Suspension should be considered if it is necessary as a means of carrying out an investigation unhindered, or to protect the employer’s business or personnel. Any suspension should only continue for such period as is reasonable to complete the investigation and any disciplinary procedure on a timely basis. The decision to suspend should be kept under review at each stage.

How should an investigation be conducted?

Prompt steps should be taken to speak to the employees concerned, including if necessary the person who is the subject of the allegation. A record should be kept and the person investigating should not conduct any disciplinary hearing, unless there is no possible alternative. If further matters arise during the investigation that require further investigation, then this should be carried out before proceeding further.
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How should an investigation proceed to the disciplinary stage?

The person conducting the investigation (or a separate person) should take the decision whether disciplinary action is appropriate. The employee should be notified of the allegations in detail and provided with a copy of any documentary evidence or statements relied on in sufficient time to prepare the hearing.

How should a disciplinary hearing be conducted?

The employee should be given an opportunity to make representations in their defence at a hearing conducted by a separate person. The employee is entitled to be accompanied by a representative (a work colleague or trade union representative only) who can speak on their behalf, but should not answer questions on their behalf.

The employee need not be given the opportunity to question witnesses, but must have details of all their evidence. It may be appropriate to adjourn and investigate further any challenges to that evidence.

In appropriate cases witnesses may retain anonymity, but this should be balanced against the implications for the fairness of the process. The employee should also be allowed to call witnesses in support.

The person conducting the hearing should adjourn to deliberate and then notify the decision at that time or subsequently and in any event confirm the decision in writing giving reasons.

What disciplinary action should be taken?

The sanction should reflect the nature of the misconduct or non-performance alleged, and the disciplinary procedure may indicate the appropriate action to be taken.

An employee should not be dismissed for the first offence other than for gross misconduct. These are the most severe cases involving (for example) dishonesty, theft, breach of trust, damage to property, fighting, bringing drugs or alcohol on company premises or serious breaches of company policy.

Other sanctions include written warnings for lesser conduct and a final written warning where an employee has failed to comply with previous warnings relating to such conduct. When deciding on the sanction an employer should be prepared to take into account, where appropriate, length of service, previous disciplinary record, action taken against other employees to ensure consistency and whether the sanction is reasonable in the circumstances.

What form should a disciplinary letter take?

Whether a warning or a dismissal an outcome letter should set out the allegations upheld, any relevant findings, the sanction imposed and the right of appeal. The employee should be asked to give reasons for any appeal in the appeal letter.

In the case of a warning letter, the duration of that warning, the improvement in conduct or performance required, the period in which improvement is required and the consequences of a failure to improve should all be referred to.

How should an appeal be conducted?

An appeal should be conducted in accordance with the disciplinary policy. The original decision and evidence should be re-considered at an appeal meeting conducted by a separate person from the one with conduct of the disciplinary hearing (unless there is no practical alternative). The employee should be notified in writing of the appeal and provided with a copy of any notes from the disciplinary, together with any fresh evidence that has emerged.

The person conducting the appeal hearing should notify the decision at that time or subsequently (and in any event) confirm the decision in writing giving reasons. The decisions could be to confirm the original decision, reverse it or impose a lesser sanction. It is not appropriate to impose a greater sanction unless the disciplinary procedure provides for this and (in any event) not without good reason.

The disciplinary checklist – what steps must be taken?

The employer must:

  • follow any disciplinary procedure and timetable, if fair and reasonable
  • consider if informal action is appropriate
  • consider whether to suspend the employee
  • carry out a full investigation
  • inform the employee in writing of the detailed allegations and provide a copy of any evidence
  • give the employee enough time to prepare
  • organise a disciplinary hearing
  • allow the employee a representative at any hearing
  • give the employee and any representative a chance to speak in defence
  • investigate new issues that arise at the disciplinary hearing
  • establish any mitigating factors
  • keep notes of the investigation/hearing
  • inform the employee in writing of the outcome and the right of appeal
  • avoid dismissal except for gross misconduct, or repeated misconduct
  • ensure the action taken is consistent with previous examples of similar conduct
  • avoid directly or indirectly discriminatory factors

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