Implementing a Disciplinary Procedure

In most relationships between an employer and an employee, the need to address behavioural and performance based issues will be dealt with in an informal manner and there will not come a time where the employer must take certain specific and formal steps to address the failings of the employee in regards to their behaviour or performance. However, in some circumstances the need to issue and implement formal and official disciplinary procedures against an employee can be unavoidable. In these circumstances, employers must ensure that they follow a clear, transparent and fair procedure which provides the employee with opportunities to defend their performance or conduct and displays that the employer has provided the employee with sufficient opportunity to improve.

Disciplinary procedures are therefore in the benefit of both the employer and the employee as they provide a cooperative approach to situations where disciplinary issues may arise between the parties and, where followed correctly, they provide protection for both the employer and the employee. Not only is it a legal requirement for employers to have a written disciplinary procedure, they also have a duty to ensure that the procedure is followed correctly and implemented consistently where any disciplinary action is taken against employees.

The minimum standard that a procedure must meet can be found in the ACAS Code of Practice on disciplinary and grievance procedures. It may be prudent for employers to implement and follow a disciplinary procedure which is more robust than the ACAS Code of Practice as this will display that they have gone above and beyond the minimum standard of transparency and fairness when engaging with their employees in disciplinary matters and will be looked upon favourably by an employment tribunal.

Crucially, it is important for employers to be reasonable when using their disciplinary procedure and not to utilise it unfairly or unreasonably against employees. Employers should therefore initiate the use of the formal disciplinary procedure carefully.

When an employer should formally invoke their disciplinary procedure.

When an employer should choose to formally implement their disciplinary procedure against an employee is largely subjective and will be dependent upon the circumstances of the case. Disciplinary procedures deal with an employee who is displaying:

poor behaviour or conduct, such as:

bullying
violence
drunkenness
poor time keeping
poor cooperation etc;

poor performance in fulfilment of their duties; or
failure to comply with any other reasonable stipulations made by the employer.

If the employer believes that the poor performance or conduct of the employee is not sufficiently serious to warrant being issued with an official disciplinary, they may wish the confront the employee in a more informal manner. This can be done in a number of ways and again should be considered alongside the circumstances of the case.

It may be the opinion of the employer that the employee may respond better to an informal meeting where the issues surrounding their conduct or performance can be discussed and how they can be improved. Often it may be that an employee may benefit from further training in order to improve their performance or conduct. Alternatively, the employee may thrive in a position with different responsibilities or may work better with different colleagues or managers. Where the employer believes that the employee will not respond to informal disciplinary measures or where the employee has failed to improve after previous informal discussions have taken place, the employer may wish to implement the formal disciplinary procedure. It is prudent for the employer to to demonstrate that they have given the employee the chance to improve their poor conduct or performance before they hold a formal disciplinary meeting with the employee or issue them with a written disciplinary. Before holding a formal disciplinary meeting with an employee there are certain measures the employer should take.

Steps the employer should take before holding a disciplinary meeting with an employee.

Before holding a formal disciplinary meeting in line with their disciplinary procedure, it may be necessary for the employer to undertake a relevant and robust investigation into the conduct of the employee, particularly where that conduct relates to bullying or intimidating behaviour. The investigation should collect as much information as is reasonably possible and should consider all available sources of evidence to them, e.g. witness statements, emails and other correspondence, CCTV, relevant timeframes, workplace policies and guidance etc. Where an investigation finds that an employee must answer questions regarding the case, a disciplinary meeting with the employee should be arranged.

The employer must inform the employee of their decision to hold a disciplinary meeting at the earliest opportunity and this must be done in writing. The notice of the disciplinary meeting to the employee should include details of when and where the meeting will be held and of what the meeting pertains to, i.e. the relevant conduct and/or performance that is deemed to be poor by the employer. The employer should also include details of any possible consequences of such poor conduct or poor performance, such as a written warning or dismissal. The employee should be given enough notice of the date and time of the disciplinary meeting that they can adequately prepare for it. The employer should inform the employee of any evidence they have collected in an investigation of the employee's poor conduct or performance and should also inform them of their legal right to be accompanied to the disciplinary meeting by a work colleague, a workplace trade union representative or an official representative who is employed by a trade union. Where it is necessary, the employee may wish to give notice to a relevant witness that they wish to bring along to the meeting as evidence in defence of the allegations made against them. An employer's individual disciplinary policy may allow an employee to be accompanied to a disciplinary meeting by someone other than the aforementioned.

Pre Disciplinary Meeting Checklist
- Carry out an investigation to collect any necessary evidence relating to the poor conduct or performance of the employee
- Inform the employee of the date, time and location of the meeting
- Allow enough time for the employee to prepare for the meeting
- Share any evidence that will be presented in the meeting with the employee
- State what disciplinary issues the meeting will relate to
- Inform the employee of their right to be accompanied to the meeting
- Inform the employee of the possible outcomes of the meeting

What to do in the disciplinary meeting with the employee.

The meeting with the employee should be a welcome chance for both the employer and the employee to discuss the matter in full, with each party being given adequate chance to present their case. There can be more than just one member of staff present on behalf of the employer. The meeting should be conducted as smoothly as possible and both parties should refrain from allowing their emotions to infiltrate the case that is being discussed. It is important for the employer to do the following:

The employer should make sure that they clearly present and explain the issue they have found in the performance or the conduct of the employee. This should be done alongside the evidence which the employer has collected from their investigation.
It is crucial that the employer clearly explains why the performance or conduct has been found to be lacking and why they believe they evidence they have collected is proof of this.
Where relevant, the employer should also call any witnesses to the employee's poor conduct or performance to the meeting to give evidence. There should be a staff member of the employer's present at the meeting to take detailed notes and minutes. This is extremely important as it allows the employer to have a record of what exactly has happened at the meeting and what has been said by each party.

Once the employer has presented their case, the employee must be given the opportunity to do the same. It is important for the employee to do the following:

The employee should be permitted to set out their case as clearly as possible, putting forward their perspective and answers to explain the alleged poor performance or conduct. They should also be permitted to ask the employer any relevant questions pertaining to the case, the evidence they have collected or how the investigation was handled.
The employee should be given the opportunity to present any of their own evidence to the employer in defence of their behaviour or conduct. Where necessary, the employee should also be permitted to call on a witness to have the witness give evidence to the employer which the employee feels is pertinent to their case. The employee should also be allowed to question any witnesses brought to the meeting by the employer.
The employer must allow the employee's chosen companion to accompany them to meeting to speak on behalf of the employee and present their case clearly. The employee's companion must also be allowed to liaise with the employee during the meeting and should also be taking notes of the meeting too.

At the end of the disciplinary meeting, the employer should:

give the employee a timeframe for when they will make a decision on the poor performance or conduct of the employee, taking into account the employee's case and any evidence they presented during the meeting; and
inform the employee of what will happen next, e.g. if the employee has been suspended, the employer should notify them if the suspension will continue until they have made their decision or if the employee will be expected to return to work in the interim period.

Once the meeting has concluded, the employer should write a confidential record of the meeting using the notes and minutes that were taken during the meeting.

Making a decision on the outcome of the disciplinary meeting.

Once the meeting has concluded, the employer should take a reasonable amount of time to reflect and consider the case of the employee before making a decision. Before making a decision:

it is imperative that the employer is 100% sure that they have followed a fair, clear and transparent procedure in dealing with the disciplinary issue; and
where they are in doubt of this or they have failed to follow their own procedure, they may face further action from the employee who may regard the decision of the employer as being invalid, unfair or overly harsh.

The employer must take into account the evidence and case that the employee presented at the disciplinary hearing and they should display that they have taken this into account in the written report they make about the disciplinary meeting. Any decision which is seen to be:

overly harsh, unreasonable or unfair may result in an appeal being made by the employee; or
where the decision is for the dismissal of the employee, it may result in the employe being taken to an employment tribunal by the employee on ground of unfair dismissal.

It is also important that the employer take into account any similar cases they have dealt with before and the decisions they made in relation to those cases. The employer must be able to display:

that they are taking a consistent and coherent approach to the alleged misconduct or poor performance of employees;
that they have implemented a similar decision to those taken in cases which have very similar circumstances or this could result in the decision being seen as unfair or unreasonable; and
that they have weighed up the evidence and case presented by the employee in the disciplinary meeting with the circumstances of a previous case relevant to their decision.

The outcomes available to the employer will vary depending on the case and could be one of the following:

1. Informal Warning

The employer may decide that, due to the case put forward by the employee in the disciplinary meeting, there is no need to instigate a formal warning and that instead the may simply have a discussion with the employee about how they can improve their performance or conduct. This is sometimes known as a "verbal warning". Often employees can react well to this outcome as they may feel that the employer is encouraging them to improve rather than reprimanding them for poor performance or conduct. The employer should keep a confidential record of the informal warning they have given to the employee. This will allow the employer to have written evidence of the warning having taken place should any future disciplinary matters with the employee arise.

2. Formal Written Warnings

Where the employer decides that the case is serious enough to warrant formal action being taken, they may issue the employee with a written warning. A written warning should state exactly:

what it is being given in relation to (i.e. the poor performance or conduct of the employee);
what the employer expects the employee to do to improve their conduct or performance;
the expected timeframe such improvements must happen within;
the potential ramifications if there is no improvement or if there are further issues with performance or conduct;
how long the warning of the employee will stay in place (e.g. the warning will remain active for 6 months); and
if the employer will provide the employee with any support or training to help aid their improvement. It is good practice for employers to offer a form of training or improvement to an employee as this displays their commitment to aiding their staff in the process.

Where the disciplinary matter does not deal with a matter of gross misconduct, the employer must have issued an employee with two written warnings before they can dismiss the employee from their position with the employer. The final written warning can be issued to the employee where there is a further matter of poor performance or conduct while the first written warning is still active or where there is no improvement in the conduct or performance of the employee at the end of the stated timeframe in the first written warning.

In cases where the poor performance or conduct is serious and could be harmful towards the business or activities of the employer, the employer may issue a final written warning immediately even where the employee has received no written warnings previously. It must be made clear to the employee in a final written warning that failure to improve their behaviour or conduct will result in them being dismissed.

3. Dismissal

The employer will be entitled to dismiss the employee from their position in certain circumstances. Where the employee has been found to have committed gross misconduct the employer shall be able to dismiss the employee from their position, i.e. terminate their employment, in writing. A non-exhaustive list of examples of gross misconduct are:

assault or attempted assault
theft
drunkenness
malicious damage
falsification of records
fraud
wilful disregard of duties
negligence resulting in damage or injury

Where the employee has not committed an act of gross misconduct, the employer shall be able to dismiss them where they have to repeat the disciplinary procedure again once a final written warning has been issued to the employee.

When dismissing an employee, the employer should confirm this dismissal in writing to the employee. This should tell the employee:

why they are losing their job;
the date their employment will end with the employer;
the relevant notice period they have been given; and
of their right to appeal against dismissal.

The employer may choose to give the employee payment in lieu of notice so that the employee stops working for them immediately. When dismissing an employee, it is imperative that the employer can show that they have followed a fair, transparent and clear procedure that the employee has been aware of at all times. Failure to do this may result in claims of unfair dismissal.

4. Other possible solutions

The employer may decide there is another solution to the employee's conduct or performance which does not take the form of a warning or a dismissal. This will depend on the nature and seriousness of the issue, in some cases the employer may wish to combine this action with a formal warning or an informal warning.

Example of other solutions could be providing the employee with further training, demoting them to a position of less responsibility or moving them to a different department or team where they may be better suited to working. This must first be discussed with the employee and then checked against the employee's contract of employment to see what solutions are open to the employer. It is good practice for the employer to take a confidential written note of this change or solution to the issue, and also to take notes of the discussion they have with the employee about implementing this solution. The employee may choose to have their chosen companion present with them at a meeting discussing the solution.

Employee's right of appeal.

The employer must allow the employee to appeal against their decision made in relation to the disciplinary meeting where the employee believes their decision was too harsh, unreasonable or unfair. The procedure for the appeal should follow the same course as that of the disciplinary procedure. The employer should hold an appeal meeting with the employee and allow them to set out their case of appeal. The employee will have the right to be accompanied to this meeting by their chosen companion. The employer should consider the employee's appeal and inform them of their decision on it in writing.

Conclusion

The implementation of a disciplinary procedure is of paramount importance when formally dealing with an employee's poor conduct or performance while at or outside of work. The employer must ensure at all time that they fully follow a clear, transparent and fair procedure to deal with the disciplinary issue in order to display their commitment to giving the employee every chance to address their conduct or performance. Once the employer has come to a decision around how the disciplinary matter should be handled, they should either make this known to the employee in writing, keeping a copy of such written notice for the records, or they should verbally communicate their decision to the employee where the decision is of an informal manner.

Often disciplinary procedure can feel complex and and tedious, however the correct and efficient implementation of them by an employer is of paramount importance and is also in their benefit. They provide a level of protection for both parties which helps to ensure that neither the employer or the employee is being taken advantage of or exploited unfairly.