ACAS Code of Practice
Any disciplinary procedure must be fair, initially so the employee can not make a claim against the employer, and, in the long term, to be used as an encouragement rather than a punishment, which would be impossible with an unfair procedure.
ACAS has set out a Code of Practice which is the basis of this sheet.
Once a disciplinary or appeals procedure is incorporated in the contract of employment it must be adhered to. By law a disciplinary procedure must be part of the contract, for existing contracts that do not have the procedures listed then the ACAS procedure is automatically implied.
Warnings
To give the employee a chance to correct their wrong doings a system of written warnings must be used, the first, final and dismissal or sanction. The first two warnings will set out what is wrong, how it can be corrected and the time frame. The final action is then dismissal or other sanction.
Investigation
As soon as a possible disciplinary matter arises all the facts should be fully investigated, preferably by different members of management to avoid bias, before a decision on any course of action is taken.
The employee must be made aware, in advance of the hearing, of the allegations against them and the supporting statements etc should be made available to them. The employee should be allowed to question witnesses.
Mitigating circumstances
An opportunity must be given for the employee to explain any mitigating circumstances. As the employer has a legal obligation to consider all factors it is a good idea to hold a formal hearing, which includes this right, at every stage and, at a minimum, before dismissal.
Representation
An employee has the statutory right to be accompanied by either a trade union official or fellow employee selected by themselves where the disciplinary meeting could result in
- a formal warning being issued; or
- the taking of some other disciplinary action; or
- the confirmation of a warning or some other disciplinary action (appeal hearings).
A trade union representative who is not an employed official must have been certified by their union as being competent to accompany a worker. They will be allowed to address the hearing and confer with the employee, but not to answer on their behalf. The accompanying person must be allowed the time off to attend.
To exercise the statutory right to be accompanied workers must make a reasonable request. What is reasonable will depend on the circumstances of each individual case. However, it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing nor would it be reasonable for a worker to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site.
The companion should be allowed to address the hearing to put and sum up the worker's case, respond on behalf of the worker to any views expressed at the meeting and confer with the worker during the hearing. The companion does not, however, have the right to answer questions on the worker's behalf, address the hearing if the worker does not wish it or prevent the employer from explaining their case.
The hearing
It should be held as soon as possible to maximise recollection of events whilst allowing the employee reasonable time to prepare their case. An open mind must kept and the employees evidence and arguments must be considered fairly. All hearings must be held consistently through out the workforce. A tribunal will judge a hearing unfair, and therefore any resulting action or dismissal unfair as well, if any the Code of Practice is not followed.
At the meeting the employer should explain the complaint against the employee and go through the evidence that has been gathered. The employee should be allowed to set out their case and answer any allegations that have been made. The employee should also be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. They should also be given an opportunity to raise points about any information provided by witnesses. Where an employer or employee intends to call relevant witnesses they should give advance notice that they intend to do this.
Decide on appropriate action
After the meeting decide and inform the employee in writing whether or not disciplinary or other action should be taken.
There are three stages of disciplinary action and each stage has a right of appeal. In the written confirmation of each stage the employee should be advised why the warning has been issued, that it constitutes a step of the disciplinary procedure, their right of appeal, the improvement that has to be made, the timescale that it has to be achieved within and the consequences of any similar offences.
- Stage 1 - performance: improvement note
This will set out the improvement that is required and any help that may be given. Normally a record of the improvement note will be kept for between 6 and 12 months
- Stage 1 - misconduct: first written warning
This will set out the change in behaviour required. Normally a record of the first warning will be kept for 12 months
- Stage 2: final written warning
Issued if the offence is sufficiently serious, or following a first written warning if there is a failure to improve. Normally a record of the first warning will be kept for 12 months
- Stage 3 - dismissal or other sanction
If there is still a failure to improve the final step in the procedure may be dismissal or some other action short of dismissal such as demotion or disciplinary suspension or transfer (as allowed in the contract of employment). Dismissal decisions can only be taken by the appropriate senior manager, and the employee will be provided the date on which the employment will terminate. If some sanction short of dismissal is imposed the employee will be warned that dismissal could result if there is no satisfactory improvement. A sanction written warning will normally be in force for 12 months.
To progress to the following step the full hearing procedure, including investigation and monitoring, must be completed. Decisions must be made up on the facts presented by both parties at the hearing and must not be pre-judged. It would be deemed pre-judged if a letter was handed to the employee at the end of the hearing stating the conclusions of that hearing or a decision was made in the employees absence or without their prior knowledge of the hearing.
When deciding whether a disciplinary penalty is appropriate, it is important to bear in mind the need to act reasonably in all the circumstances. Factors which might be relevant include the extent to which standards have been breached, precedent, the employee's record, position, length of service and special circumstances which may make it appropriate to adjust the severity of the penalty.
Where misconduct is confirmed or the employee is found to be performing unsatisfactorily it is usual to give the employee a written warning. A further act of misconduct or failure to improve performance within a set period would normally result in a final written warning.
If an employee's first misconduct or unsatisfactory performance is sufficiently serious, it may be appropriate to move directly to a final written warning. This might occur where the employee's actions have had, or are liable to have, a serious or harmful impact on the organisation.
Some acts, termed gross misconduct, are so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence. But a fair disciplinary process should always be followed, before dismissing for gross misconduct.
Where an employee is persistently unable or unwilling to attend a disciplinary meeting without good cause the employer should make a decision on the evidence available.
Appeal
The employee should be advised about and given the opportunity to appeal against the decision even if the evidence is overwhelmingly against the employee. The employee must let the employer know the grounds for their appeal in writing. Appeals should be heard without unreasonable delay and ideally at an agreed time and place.The appeal should be dealt with impartially and wherever possible, by a manager who has not previously been involved in the case. The employee has a statutory right to be accompanied at appeal hearings and they should be informed in writing of the results of the appeal hearing as soon as possible.
Gross misconduct
Disciplinary rules should give examples of acts which the employer regards as acts of gross misconduct and would usually include theft, fraud, deliberate falsification of records, fighting, assault on another person, deliberate damage to organisational property, serious incapability through alcohol or being under the influence of illegal drugs, serious negligence which causes unacceptable loss, damage or injury, serious contractual breach, gross negligence, serious act of insubordination, unauthorised entry to computer records etc. In even the most serious cases a hearing must still be held, usually the employee is put on paid suspension until the hearing date. If proven the usual result is dismissal without any warnings.
