The procedure in operation
As soon as is possible after a possible disciplinary matter arises all the facts and recollections should be gathered 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.
Once the disciplinary procedure is started it should be first decided how serious the matter is and if suspension whilst the matter is investigated is appropriate. Suspension itself is not a disciplinary action and this should be made clear to the employee. 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.
Disciplinary procedure stages. Each stage has a right of appeal.
- Oral or verbal warning.
Usually confirmed in writing, this does not make it a written warning. Normally issued for minor offences and is usually in force for between 6 and 12 months
- First written warning.
Normally issued for continuance of the original offence after the oral warning or for a more serious first offence and is usually in force for 12 months
- Final written warning.
Normally issued for continuance of the original offence after the first written warning or for a much more serious first offence and is usually in force for 12 months
- Dismissal.
Normally issued for continuance of the original offence after the final written warning
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 and the timescale that it has to be achieved within and the consequences of any similar offences.
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. 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.
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.
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.
