Disciplinary procedure

ACAS disciplinary code of practice

Whilst the ACAS code is not law an employment tribunal will expect the code to have been closely followed and will be taken into account in their final decision. The ACAS code is designed to help employers, employees and their representatives deal with disciplinary and grievance situations in the workplace. Situations such as misconduct or poor performance would be disciplinary matters whilst problems or complaints that employees raise with their employers would be grievance matters all of which are covered by the code. Redundancy and non renewal of fixed term contracts is not covered by the code.

Fairness and transparency are promoted by developing and using rules and procedures for handling disciplinary and grievance situations. These should be set down in writing, be specific and clear. Employees and managers must be made aware of what the rules and procedures are, where they can be found and how they are to be used.

To ensure that issues are dealt with fairly the following should be ensured

• Issues should raised and dealt with issues promptly
• Meetings, decisions or confirmation of those decisions should not be unreasonably delayed
• All parties should act consistently
• Investigations should be made to establish the facts of the case
• Employers should allow an employee to appeal against any formal decision made.

The requirement

Failure by an employer to follow a disciplinary procedure may result in a case of unfair dismissal being brought against them.

An employee should not be punished unjustly for an act or omission which was not their responsibility, and it is the responsibility of the employer to have in place procedures that ensure, as best as is possible, that this does not happen.

Disciplinary rules and procedures are necessary for promoting orderly employment relations as well as fairness and consistency in the treatment of individuals. They also enable organisations to influence the conduct of workers and deal with problems of poor performance, thereby assisting those organisations to operate effectively. Rules set standards of conduct and performance at work; procedures ensure the standards are adhered to and also provide a fair method of dealing with alleged failures to observe them. It is important that employees know what standards of conduct and performance are expected of them.

Rules

It is the responsibility of management to ensure that there are adequate disciplinary rules and procedures and that the workforce be made aware of them and that they are fair and reasonable. It will be difficult to have workers (and a tribunal) accept unreasonable or unknown rules.

A set of disciplinary rules is specific to the type of industry or business, size and work conditions; so will vary between businesses and employers but the underlying aim is the same:

• to specify clearly and concisely those rules that are necessary for the efficient and safe performance of work and for the maintenance of satisfactory relations within the workforce and between the employees and management
• to specify the likely consequences of breaking the rules or failing to meet performance standards. In particular, a clear indication should be given of the type of conduct, often referred to as gross misconduct, that may warrant summary dismissal.

Essential features of disciplinary procedures

A good disciplinary procedure should :

• Be in writing
• State who they apply to (where rules differ for different groups)
• Be non-discriminatory
• Provide for matters to be dealt with quickly
• Allow for information to be kept confidential
• Indicate the disciplinary actions that may be taken
• Provide for individuals to be informed of the complaints against them
• State what levels of management have the authority to take the various forms of disciplinary action
• Require employees to be informed of the complaint and supporting evidence, before any meeting
• Provide employees with an opportunity to state their case
• Explain the statutory right of accompaniment to hearings
• Provide that no employee is dismissed for a first breach of discipline, except in cases of gross misconduct
• Ensure a full investigation of the case is carried out
• Ensure that employees are given an explanation for any sanction
• Give a right of appeal

The procedure should not only be viewed as a means of imposing sanctions but as a way of encouraging improvement.

The procedure in operation

The way in which the procedure is operated is practically identical for both disciplinary and grievance matters. As soon as is possible after a possible disciplinary matter arises all the facts and recollections should be gathered (the investigation phase) and a decision as to whether to start the disciplinary procedure should be made or the whole matter be dropped or some other action should be taken. In cases where a period of suspension with pay is considered necessary, this period should be as brief as possible, should be kept under review and it should be made clear that this suspension is not considered a disciplinary action.

Once the disciplinary procedure has started the first thing to do is to decide how serious the matter is and if suspension whilst the matter is investigated is appropriate. After full investigation, the findings of which should be made available to the employee concerned, the employee is invited to attend a disciplinary hearing. They must also be advise that they can attend the hearing with a trades union official or work colleague if they so wish.

The hearing gives the employee an opportunity to state their case and to answer the allegations that have been made. If an employee already has warnings and they are for unrelated misconducts the correct procedure would be to start new proceedings and ignore the previous misconduct. After all representations have been made and all considerations taken into account a decision is made as to the action to be taken; either no action at all, start or continue formal disciplinary action or, as long as the offence warrants it, summary dismissal.

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.

Dealing with absence and poor performance

A distinction needs to be made between medically certified illness and those absences which may call for disciplinary action. If, after investigation, there are no acceptable reasons for the absence the matter may be dealt with under the disciplinary procedure whereas a medical absence needs to be viewed as a capability to perform the work issue and should be dealt with separately.

In the case of poor performance of duties the reason behind this needs to be investigated and a decision made as to whether it is due to a lack of application or negligence on the part of the employee or whether it is a lack of skills. If the former is the case then it is appropriate to commence the disciplinary procedure, if it is the latter training should be given with the object of helping the employee reach the required standard and would ultimately become a capability issue.

Exceptional cases

There are situations where special consideration should be given to the way in which disciplinary procedures are to operate. For instance, criminal offences committed outside of work time are not an automatic reason for dismissal. If the offence has an effect on the duties required to be performed by the employee or makes them unacceptable to other employees or undermines the relationship between them and the employer there may then be a reason to consider action. Employees working on their own or in isolated locations may have to have special provisions made for them due to the manner in which they work. They still however are entitled to be treated fair and reasonably.

Investigation

An employer must fully investigate any alleged misconduct before making any decision about discipline. Failure to this this is in contravention of the ACAS code of practice which could ultimately result in an employment tribunal making an unfair dismissal decision.

The investigation should be thorough and fair with the purpose of uncovering the true facts in sufficient quantity that an informed decision can be made as to whether any offence has been committed. The investigation should be started as soon as possible after the alleged offence was committed and completed with out unnecessary delay. If possible the investigation should be carried out by a different person to the decision maker of any subsequent hearing. A meeting with the employee may have to be held to fully establish the facts; the employee must be informed that the meeting is just for investigation purposes and that its purpose is not to make a decision. The employee is not entitled to be accompanied to an investigatory meeting. All the relevant information should then be provided to the employee along with an explanation of why the incident is classed as misconduct. This should be provided well in advance of any hearing and in writing.

The employer may be dependant upon colleagues of the employee under investigation to provide the eye-witness evidence or substantiate facts. They should be made aware that the employee is entitled to question witnesses to ensure the accuracy of their account and that there is no ulterior motive for the allegation. As a result of this a witness has the right to remain anonymous; special procedures within the guidelines cover this eventuality.

Standard of proof

It may be that the alleged offence committed may also be against the law, in which case the police may proceed with a prosecution. The outcome of any police action is independent of any action or decision made by a disciplinary hearing, even if the two disagree. No delay of the procedure until the police outcome is known should be made. The internal investigation should proceed normally and the hearing held.

If the employee is subsequently acquitted of the criminal charge then, providing the internal disciplinary procedure was carried out correctly and a fair decision made based upon the facts available at the time, it would be difficult for a tribunal to return an unfair dismissal decision. The employer is not required to prove beyond all reasonable doubt the allegation but on the balance of probabilities, based upon the facts available after a fair investigation and with the employees story taken into account, that the employee committed the alleged misconduct.

Inform the employee of the problem

If it is decided that there is a disciplinary case to answer, the employee should be notified of this in writing. This notification should contain sufficient information about the alleged misconduct or poor performance and its possible consequences to enable the employee to prepare to answer the case at a disciplinary meeting. It would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification.

The notification should also give details of the time and venue for the disciplinary meeting and advise the employee of their right to be accompanied at the meeting.

Special cases

Where disciplinary action is being considered against an employee who is a trade union representative the normal disciplinary procedure should be followed. Depending on the circumstances, however, it is advisable to discuss the matter at an early stage with an official employed by the union, after obtaining the employee's agreement.

If an employee is charged with, or convicted of a criminal offence this is not normally in itself reason for disciplinary action. Consideration needs to be given to what effect the charge or conviction has on the employee's suitability to do the job and their relationship with their employer, work colleagues and customers.

The disciplinary hearing

The purpose of the hearing is to investigate whether or not any misconduct has been committed and to allow the employee to put forward a reason or explanation for their conduct. As this hearing could decide whether the employees contract is terminated it must be conducted fairly, anything other than this could lead to an unfair dismissal claim.

The allegation and all the evidence must be made available to the employee well in advance of the hearing to allow the employee to prepare a proper defence. All witnesses must be made available at the hearing for questioning if the employee requests it. No new allegations should be made without re-starting the complete procedure. The employee is allowed to be accompanied by either a trade union official or a fellow worker of their own choice but they are not allowed to answer on the employees behalf. The employer must allow time off for the accompanying person and re-schedule to a date of the employees choice if that person will not be available on the date of the hearing.

If possible the person investigating the misconduct should be different from the decision maker of the hearing. The decision maker should not have a direct interest in the outcome of the hearing. It is important that all the relevant facts are taken into account when considering the decision, therefore the decision is very rarely made at the end of the hearing.

Overlapping grievance and disciplinary cases

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.

Appeals

There are a number of grounds under which an appeal can be made; perceived unfairness of the judgement, the severity of the penalty, new evidence coming to light or procedural irregularities. To aid fairness and objectivity the decision maker of the appeal should be different from the one in the original hearing.

An appeal hearings object is not to re-hear the case but to re-consider the decision made taking into account the grounds of the appeal, this may lead to parts of the original evidence being viewed in a different light or the relevancy of it being reviewed but should not be a point by point re-examination of all the evidence.

The appeal decision is final.

If the employee has one years continuous service they may claim unfair dismissal at an employment tribunal, if under one year they may only claim for money owed under wrongful dismissal.

Records of the hearing and any subsequent appeal must be made and retained, these should include the nature of the misconduct, the original evidence, the employees defence and the action taken along with the the reason for it. The Data Protection Act 1998 requires information to be kept safely and confidentially and that certain information be made available to the employee upon request and payment of a fee.