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Handling Disciplinaries
 

Handling Disciplinaries

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Even in well-run businesses, it may sometimes be necessary to take disciplinary action against employees....

Even in well-run businesses, it may sometimes be necessary to take disciplinary action against employees.

Therefore it's crucial that you have written disciplinary rules and procedures. If problems do arise, these procedures should help dissuade employees from making tribunal claims and ensure you deal with employees fairly.

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    Handling Disciplinaries Handling Disciplinaries Document Transcript

    • Handling disciplinaries Table of contents Handling disciplinaries 2 Introduction 2 Disciplinary procedures and the employment contract 2 Setting out disciplinary rules and procedures 3 Investigating disciplinary matters 4 Informal and formal disciplinary action 5 The statutory dismissal and disciplinary procedures 6 Preparing for a disciplinary hearing 8 Holding a disciplinary hearing 8 Dealing with grievances raised during disciplinary procedures 10 Types of disciplinary penalty 10 Appeals against disciplinary decisions 11 Helplines 13 Related guides on businesslink.gov.uk 13 Related web sites you might find useful 13 Created by Business Link on 16 September 2009 14:45 You can personalise content from the Business Link website and download it in PDF format. This is a free service Handling disciplinaries | Created by Business Link on 16 September 2009 14:45 è Crown copyright 2007 Page 1
    • Handling disciplinaries Subjects covered in this guide Introduction Introduction Even in well-run businesses, it may Disciplinary procedures and the employment sometimes be necessary to take disciplinary contract action against employees. Setting out disciplinary rules and procedures Therefore it's crucial that you have written disciplinary rules and procedures. If Investigating disciplinary matters problems do arise, these procedures should help dissuade employees from making Informal and formal disciplinary action tribunal claims and ensure you deal with employees fairly. The statutory dismissal and disciplinary procedures Your rules and procedures should: Preparing for a disciplinary hearing • be set out in writing Holding a disciplinary hearing • follow the good-practice principles set out in the Acas code of practice Dealing with grievances raised during on disciplinary and grievance disciplinary procedures procedures Types of disciplinary penalty Failure to meet this requirement may result Appeals against disciplinary decisions in extra compensation for the employee if they succeed in a tribunal claim. Helplines Related guides on businesslink.gov.uk This guide outlines what you need to put in your procedures, how to handle disciplinary Related web sites you might find useful issues in practice, and what disciplinary penalties you can apply. Disciplinary procedures and the You can find this guide by navigating to: employment contract Home > Employing people > Disciplinary You must by law tell each employee about: problems, disputes and grievances > Handling disciplinaries • your disciplinary rules • your disciplinary/dismissal procedure • the name of the person to whom they should appeal if they are unhappy about a disciplinary or dismissal decision Handling disciplinaries | Created by Business Link on 16 September 2009 14:45 è Crown copyright 2007 Page 2
    • Handling disciplinaries This information can be included in the Your disciplinary rules should - at the very employee's written statement or the written least - cover conduct issues relating to: statement may refer the employee to a document where they may read the • absence information, eg in a staff handbook. • timekeeping • performance If you fail to provide this information to an • health and safety employee, they could be awarded two or • personal appearance four weeks' pay - but only if they succeed in • discrimination, bullying and another employment tribunal claim against harassment you, eg unfair dismissal. • smoking, and alcohol and drugs consumption The contractual status of disciplinary • use of company facilities and procedures equipment for personal reasons in work time, eg use of the internet, or Your dismissal/disciplinary procedure does particular websites such as not automatically form part of an Facebook, instant messaging employment contract. Therefore, an services, web-based email, company employee cannot claim breach of contract if email and telephones you fail to follow it. This list is not exhaustive - you cannot cover However, if you choose to make your everything that might lead to disciplinary disciplinary procedure contractual and you action and there may be other rules you fail to follow it when taking disciplinary need to include for your type of business. action, the employee could bring a breach-of-contract claim against you. Your rules should make it clear that if an employee fails to meet the minimum See our guide on the employment standards of conduct, you may begin contract or use our interactive tool to disciplinary action against them. create a written statement of employment. See our guide on how to set up employment policies for your business. Setting out disciplinary rules and The rules should also give examples of the procedures type of behaviour you will treat as gross misconduct - misconduct judged so serious It's important that you tell your employees that it's likely to lead to dismissal without about your rules governing what behaviour notice such as: is unacceptable in the workplace - and the consequences if you find they have breached them. • bullying and harassment • drunkenness/drug abuse • fighting at work Setting out disciplinary rules • fraud • gross negligence/insubordination Handling disciplinaries | Created by Business Link on 16 September 2009 14:45 è Crown copyright 2007 Page 3
    • Handling disciplinaries • serious breaches of health and safety taking any action. Consider: • theft • wilful damage to property • the alleged breach of discipline, the • use of the internet or email to access circumstances and consequences of pornographic, obscene or offensive the breach material • the employee's job, experience, length of service and disciplinary Make it clear that the list is not exhaustive. record What counts as gross misconduct varies • the evidence of witnesses depending on the type of business and the • any recent changes to the job role of the employee. • any previous incidents • whether the employee has received appropriate counselling or training Setting out disciplinary procedures • any mitigating circumstances, eg Your disciplinary procedure should accord health or domestic problems, or with the good-practice principles set out in provocation the Acas code of practice on disciplinary and grievance procedures. Once you have taken these factors into account, review the evidence to determine If you unreasonably fail to follow the code whether there is: during a disciplinary procedure and the issue ends up at an employment tribunal, • a case to answer, or whether the the tribunal could increase any case is serious enough for compensation it may award the employee disciplinary measures by up to 25 per cent. • an alternative to disciplinary action, eg an informal chat or redeployment Consulting employees on your disciplinary rules and procedure Suspending an employee while an investigation takes place You may want to consult with your employees when putting together your For certain serious offences you may need disciplinary rules and procedure. to suspend an employee while you investigate the matter. They should continue If you have any workplace representatives, it to receive their full pay. may be more convenient if you carry out this consultation via them, ie via either trade You can only suspend an employee without union or, if there are none, elected pay if this is allowed in their contract of employee representatives. employment. However, try to avoid unpaid suspension as it may appear to penalise an employee before any disciplinary hearing Investigating disciplinary matters has taken place. When faced with a potential disciplinary Criminal offences matter, carry out a full investigation before Handling disciplinaries | Created by Business Link on 16 September 2009 14:45 è Crown copyright 2007 Page 4
    • Handling disciplinaries Don't dismiss someone merely because misconduct they have been charged with or convicted of a criminal offence, either at work or outside In cases of misconduct, you should have a it. You should investigate what action is meeting with the employee to explain the justified given the employee's role and disciplinary procedure and your reasons for consider whether it affects their suitability to going ahead with it. After this, you could carry on. either drop the matter or issue: If it does, use your normal disciplinary • a verbal warning procedure. If it doesn't, decide whether you • a written warning can keep their job open during any period of • a second written warning, or absence. • a final written warning, if necessary Base your decision on a reasonable belief After giving a warning, you should allow the following an investigation into the employee time to improve their behaviour. circumstances. However, if a criminal You should only issue a further warning or charge has been made, don't put off taking hold a formal disciplinary hearing if the appropriate, fair and reasonable disciplinary previous warning has no effect. action merely because the outcome of the prosecution isn't yet known. If you decide that you need to hold a formal disciplinary hearing, this is the point at which the statutory dismissal and disciplinary Informal and formal disciplinary procedures (SDDPs) begin to apply - but only if you started the disciplinary action action before 6 April 2009. If an employee's performance or conduct does not meet your standards, you should If you started the disciplinary action on or try to help that employee to improve. Have after 6 April 2009, you don't need to follow an informal discussion with the employee as these procedures. However, your procedure soon as problems arise, explain the problem should accord with the good-practice and agree actions with them. This kind of principles set out in the Acas code of informal chat is not part of any formal practice on disciplinary and grievance disciplinary procedure. procedures. If the employee's poor conduct or Find guidance on which rules apply to performance persists, you may have to take the disciplinary action you're taking on formal disciplinary action. the Department for Business, Innovation & Skills (BIS) website - Opens in a new Note that the employee has the right to be window. accompanied at the formal disciplinary meeting by a colleague or union In certain cases of very serious misconduct, representative. it may be appropriate to bypass a stage in order to deal with the matter quickly. Formal disciplinary action for Handling disciplinaries | Created by Business Link on 16 September 2009 14:45 è Crown copyright 2007 Page 5
    • Handling disciplinaries Formal disciplinary action for poor You must follow one of the statutory performance dismissal and disciplinary procedures (SDDPs) below if you started taking In cases of poor performance, the procedure disciplinary/dismissal action against an is different. As a first step, meet with the employee before 6 April 2009. employee to agree an improvement plan. This should include a realistic timescale for improvement, details of support to be given There are standard and modified SDDPs. In to the employee - eg training - and a date for almost all cases, you should follow the a performance review. Make notes of what standard one. you agree and use it as an agenda for the review. Transitional arrangements for applying the statutory procedures If your employee's performance has not You do not have to follow the appropriate improved after the review, you should SDDP when the 'trigger event' occurs on or consider issuing a verbal warning. Carry out after 6 April 2009. a further review - if performance still hasn't improved, you should consider issuing a written - or final written - warning. The trigger event could be either: If their performance continues to fail to meet • the date you start the disciplinary or the required standards, you should consider dismissal procedure - usually the either issuing a final written warning or, if date you send a letter to the you have done this already, holding a formal employee informing them that you disciplinary hearing. This is the point at are contemplating dismissing them or which the SDDPs begin to apply - but only if taking disciplinary action against you started the disciplinary action before 6 them April 2009. • the date of the disciplinary action/dismissal itself, when no such letter has been sent If you started the disciplinary action on or after 6 April 2009, you don't need to follow these procedures. However, your procedure However, you still have to follow the should accord with the good-practice appropriate SDDP where the trigger event principles set out in the Acas code of occurred before 6 April 2009. This is the practice on disciplinary and grievance case even if - after that date - you: procedures. • held or will hold the disciplinary For more information on the SDDPs, see the hearing page in this guide on the statutory • held or will hold an appeal hearing (if dismissal and disciplinary procedures. requested) In these circumstances, you cannot agree The statutory dismissal and with an employee not to follow the SDDPs. disciplinary procedures Handling disciplinaries | Created by Business Link on 16 September 2009 14:45 è Crown copyright 2007 Page 6
    • Handling disciplinaries Find out more about transitional drunkenness. arrangements for the SDDPs on the Department for Business, Innovation & The procedure has two stages: Skills (BIS) website - Opens in a new window. 1. Written statement - give the employee a written statement setting The standard SDDP out the conduct that has resulted in The standard SDDP has three stages: their dismissal and informing them of their right to appeal. 2. Appeal meeting - if the employee 1. Inform the employee in writing why wishes to appeal, they must inform you are contemplating dismissing or you. Hold an appeal meeting and taking some other disciplinary action then inform the employee of your against them and invite them to a decision. meeting. Make sure you give them enough time to prepare. Provide the employee with copies of any The employee has the right to be evidence that you may use at that accompanied at the meeting by a colleague meeting. or union representative. 2. Hold the meeting with the employee. After the meeting, inform them of You have to follow the 'old' Acas code of your decision and, if you have practice on disciplinary and grievance decided to dismiss them or apply a procedures throughout the entire disciplinary disciplinary penalty, notify them of process, as the code is taken into account their right to appeal. If new by tribunals when dealing with unfair information arises during the meeting dismissal claims. that may affect your decision, end the meeting and investigate the Download the old code of practice on matter further. Rearrange the disciplinary and grievance procedures meeting if necessary. from the Acas website (PDF, 327K) - 3. If the employee wishes to appeal, Opens in a new window. invite them to a further meeting. See the page in this guide on appeals against disciplinary decisions. In addition, if you fail to follow the appropriate SDDP and the employee's tribunal claim is successful, their The employee has the right to be compensation can be increased by up to 50 accompanied at both meetings by a per cent. colleague or union representative. When the SDDPs don't apply The modified SDDP The law sets out some circumstances where The modified SDDP only applies in very rare you don't have to follow the appropriate cases of gross misconduct, ie where an SDDP. These are where: employee's misconduct is so bad that you dismiss them immediately, eg fighting or Handling disciplinaries | Created by Business Link on 16 September 2009 14:45 è Crown copyright 2007 Page 7
    • Handling disciplinaries • It's not possible for employment to • Carry out a full investigation. See continue, eg where the workplace the page in this guide on burns down and no suitable investigating disciplinary matters. alternative premises are available. • Make sure you have all relevant • You dismiss an employee for taking facts and documents (including industrial action (although in the case details of any past disciplinary action of lawful, officially-organised action, taken against the employee) special arrangements apply). available for the hearing. • Owing to factors beyond your control, • Inform any manager and it is effectively impossible for you to witnesses who may need to attend. complete or even start the • Obtain witness statements from procedure, eg if the employee leaves any witnesses unable to attend the the country or becomes seriously ill. hearing. • You dismissed the employee • Arrange for someone to take notes. because it would be illegal to • Arrange for another manager to continue to employ them, eg where attend the hearing to act as a witness you employed them as a driver but to the proper conduct of the hearing. they became disqualified from driving • Arrange a suitable time, date and and there was no suitable alternative venue for the hearing. work for them to do. • The issue concerned is a collective You should also ensure the employee has: one, eg where you are under a duty to consult workplace representatives in a collective redundancy situation • plenty of time so they can prepare or where you dismiss a group of their case and consult any employees but immediately offer representatives them re-employment on different • details of the complaint, the terms and conditions. procedure to be followed and the • When the employee's behaviour is need for them to attend a disciplinary so violent or unreasonable that you hearing cannot be expected to go through the • their right to be accompanied at the procedure with them. This exemption hearing by a colleague or trade union is to cover cases where you have official real reason to fear violence, • copies of any documents you intend harassment or vandalism, not just to rely on as evidence against the where the employee is being difficult employee or unpleasant. If the employee is a trade union official, it is advisable to discuss the case with a full-time Preparing for a disciplinary hearing trade union officer or senior trade union representative. Before you hold a disciplinary hearing: • Familiarise yourself with your Holding a disciplinary hearing disciplinary procedure so you apply it correctly. For any disciplinary hearing: Handling disciplinaries | Created by Business Link on 16 September 2009 14:45 è Crown copyright 2007 Page 8
    • Handling disciplinaries penalty • ensure that it's private and won't be • the reasoning behind the decision interrupted • the specific improvement that is • introduce everyone and explain why required - if any they are present • how long any warning is going to • explain the reason for the hearing remain in force and how it will be conducted • what will happen if they continue to • describe the exact nature of the perform or behave poorly complaint and go through the • the right of appeal and how this evidence should be carried out - see the page • allow the employee to see any in this guide on appeals against documents they haven't already seen disciplinary decisions • give the employee a chance to state their case and to respond to any Dealing with delays allegations made • ensure that you get all the facts If the employee is genuinely unable to relating to the complaint and take attend the disciplinary hearing, eg because note of any special circumstances they are ill, offer them an alternative at a • summarise what's been discussed reasonable date and time. and highlight any issues that need to be investigated further If the employee's companion cannot make the re-arranged hearing, the employee must If it becomes clear during the hearing that propose another date and time no more the employee has a satisfactory than five days after your proposed date. explanation for their conduct/performance, stop the hearing and take no further action. Also stop the meeting if the employee is too If the employee fails to attend the distressed to continue or further rearranged hearing, this stage of the investigation seems necessary. procedure is complete and you can make your decision there and then. Don't forget that you will still have to tell them in writing If an employee raises a separate grievance of the decision and that they have the right during a disciplinary hearing, you may have to appeal. to call a halt to the hearing and deal with the grievance first. See the page in this guide on dealing with grievances raised during Note that if you cannot make the hearing, disciplinary procedures. you must offer the employee an reasonable alternative date and time. Informing the employee of your decision It is important that you notify the employee Following a disciplinary hearing, you should as soon as possible of any delays. If you fail inform the employee as soon as possible in to do so, a tribunal could increase any writing of: compensation awarded against you. • the disciplinary penalty you plan to Dealing with long-term absence impose, if any - see the page in this guide on types of disciplinary An employee may well become anxious and Handling disciplinaries | Created by Business Link on 16 September 2009 14:45 è Crown copyright 2007 Page 9
    • Handling disciplinaries stressed in the run-up to a disciplinary If this happens, you should suggest that, hearing. This can lead in some cases to after the hearing, they raise a formal them being absent for weeks or even grievance in writing. months due to stress-related illness. However, if you begin to doubt why the the If this situation arises, you can ask the disciplinary action is being taken, you should employee's GP and/or an occupational end the meeting. You should then make health specialist for a medical report. (You further investigations to confirm that the must gain the employee's agreement before reasons for taking the action are sound and doing so.) justifiable. You should ask for the report to state If the employee formally raises a grievance whether or not the employee is fit enough to after a disciplinary hearing but before any attend a hearing in the near future: appeal hearing, you can discuss this at the appeal stage. The appeal hearing will also • If they are deemed fit enough, you become a grievance hearing and the two should arrange the hearing with the procedures will overlap. employee in the normal way. • If not, you might not be able to If the employee formally raises a grievance complete the disciplinary procedure during or after any appeal hearing, you will without unreasonable delay. In this have to complete your grievance procedure situation, you can treat the procedure in full. as having been completed and make a decision in the employee's For more information about grievances, see absence. However, you should still our guide on handling grievances. tell the employee that they can supply written material for their defence if they wish. Types of disciplinary penalty After a disciplinary hearing, you could: Dealing with grievances raised during disciplinary procedures • drop the matter • issue another written - or a final At some point during the disciplinary written - warning process, the employee concerned may raise • provide counselling or training to help a grievance. For example, they may claim resolve the matter that: • apply a disciplinary penalty, eg demotion or dismissal • the disciplinary action involves unlawful discrimination Take account of factors such as the • the real reason for you taking the employee's previous record and any special disciplinary action is not the one you circumstances in making your decision. For claim it is a list of possible factors to consider see the page in this guide on investigating Handling disciplinaries | Created by Business Link on 16 September 2009 14:45 è Crown copyright 2007 Page 10
    • Handling disciplinaries disciplinary matters. For gross misconduct you may be able to dismiss immediately without giving notice or Disciplinary penalties other than pay in lieu of notice. However, summary dismissal dismissal is generally not recommended. If you feel that the employee's misconduct or poor performance was not bad enough to Ideally, for any misconduct - gross or dismiss them, provided their contract allows, otherwise - you should: you could: • investigate the incident fully • transfer them to another job • suspend the employee on full pay • demote them during the investigation where • fine them, eg by non-payment of necessary bonuses • follow the standard SDDP if • suspend them without pay - this is necessary - although this only not very common these days and applies if the disciplinary action means that you lose the employee's began before 6 April 2009 services for a time For more on investigations, see the page in To avoid potential claims to an employment this guide on investigating disciplinary tribunal, you should expressly provide for matters. any of these sanctions in the contract of employment. See our guide on the For more information on the SDDPs, see the employment contract. page in this guide on the statutory dismissal and disciplinary procedures. Dismissal The most severe disciplinary penalty is dismissal. Normally you should only dismiss Appeals against disciplinary if - during the entire disciplinary process - decisions you have: An employee has the right to appeal against your decision following the disciplinary • Issued warnings. hearing. You must notify them of this right • Made it clear that if they failed to when you write to give them the decision. improve their conduct or Give them a deadline to notify you of their performance they could be intention to appeal, eg within ten working dismissed. days. • Followed - at the very least - the standard statutory dismissal and disciplinary procedure (SDDP). If the employee does appeal, you must try to Failure to do so will make any hold the appeal hearing without dismissal automatically unfair. Note, unnecessary delay. however, that this only applies if the disciplinary action began before 6 Preparing for an appeal hearing April 2009. Before you hold an appeal hearing: Handling disciplinaries | Created by Business Link on 16 September 2009 14:45 è Crown copyright 2007 Page 11
    • Handling disciplinaries • Familiarise yourself with the appeal shouldn't be the same person that heard the stage of your disciplinary procedure initial hearing, eg a more senior manager to ensure that you are applying it who has not been involved with the correctly. disciplinary process at all. They will be able • Make sure you have all relevant facts to hear any appeal without having any and documents, especially if you assumptions. have come across new evidence since the first hearing. However, where the person hearing the • Arrange a suitable time, date and appeal is the same person who heard the venue for the hearing. first hearing, they should act impartially and • Inform the worker in plenty of time so make sure they review the original decision they can prepare their case and carefully. consult any representatives. Remind them that they have the right to be accompanied at the hearing by a You should write to the employee with your colleague or trade union official. decision and the reason for it as soon as • Inform any manager and witnesses possible after the hearing. Make it clear, if who may need to attend. this is the case, that the decision is final. • Obtain witness statements from any witnesses unable to attend the Appeals to external bodies hearing. • Arrange for someone to take notes. Some industries, eg the construction • If possible, arrange for another industry, have procedures for dealing with manager to attend the hearing to act appeals agreed between employer bodies as a witness to the proper conduct of and trade unions. This should be stated the hearing. If this is not possible, eg during the disciplinary procedure. where there is only one manager and one employee, the person holding Dealing with delays the meeting must be impartial. If the employee is genuinely unable to attend the appeal hearing, eg because they Holding an appeal hearing are ill, you must offer them an alternative at The principles for holding an appeal hearing a reasonable date and time. are generally the same as for the initial disciplinary hearing - see the page in this If the employee's companion cannot make guide on holding a disciplinary hearing. the rearranged hearing, the employee must propose another date and time no more However, at the appeal hearing, you should than five days after your proposed date. also consider: If the employee fails to attend the • the reasoning behind the appeal rearranged hearing, this stage of the • any new evidence since the earlier procedure is complete and you can make decision your decision there and then. Don't forget that you will still have to tell them in writing of the decision. Ideally the person hearing the appeal Handling disciplinaries | Created by Business Link on 16 September 2009 14:45 è Crown copyright 2007 Page 12
    • Handling disciplinaries Note that if you cannot make the hearing, Dispute resolution guidance on the Acas you must offer the employee a reasonable website - Opens in a new window alternative date and time. Handling discipline and grievance It is important that you notify the employee training courses on the Acas website - as soon as possible of any delays to the Opens in a new window appeal process. If you fail to do so, a tribunal could increase any compensation Which rules apply to the disciplinary awarded against you. action you're taking on the BIS website - Opens in a new window Helplines Right to be accompanied at disciplinary Acas Helpline hearings guidance on the Acas website - Opens in a new window 08457 47 47 47 Sample disciplinary procedures on the Acas website - Opens in a new window Related guides on Model letters and notices of disciplinary businesslink.gov.uk matters on the Acas website - Opens in a Use our interactive tool to create a new window written statement of employment | Use our interactive tool to help you follow the Download disciplinary and grievance correct disciplinary procedure | Improve procedures code of practice from the the performance of your staff | The Acas website (PDF, 327K) - Opens in a employment contract | Dismissal | new window Handling employment tribunal claims | Keep the right staff records | Set up employment policies for your business | Bullying and harassment | Work effectively with trade unions | Working with employee representatives | Making an employee redundant | Industrial disputes | Comply with data protection legislation | Manage absence and sickness | How to deal with stress | Handling grievances | Prevent discrimination and value diversity | Issue the correct periods of notice | Related web sites you might find useful Handling disciplinaries | Created by Business Link on 16 September 2009 14:45 è Crown copyright 2007 Page 13