Michael Corcoran, a solicitor in the Steeles employment team, offers advice on disciplinary procedures.
Aims of a policy
The aim of a disciplinary procedure is to encourage and maintain standards of conduct and ensure consistent and fair treatment for all. It should allow the employer to seek an informal resolution, where appropriate, but allow for more formal proceedings should the circumstances justify disciplinary action.
Who is it for?
New minimum statutory disciplinary procedures are set out in Schedule 2 of the Employment Act 2002 and must now be followed by all employers regardless of size, where they contemplate dismissing or taking relevant disciplinary action against an employee. "Relevant" disciplinary action does not include warnings (whether written or oral) but will include demotion, reallocation of duties, suspension without pay and probation, among other things.
Failure to follow the procedure where an employee has more than one year's service will result in the dismissal being classed by a Tribunal as automatically unfair. Following the procedure, however, does not guarantee that the dismissal will be fair, as dismissal is still subject to employment law principles of equality and fairness.
Section 35 of the Act requires all employers to provide employees with accurate written particulars dealing with company disciplinary procedures. Failure to do so can result in the tribunal making an additional compensation award to a successful claimant.
Essential elements - the standard procedure
Below are the steps, set out in Schedule 2 of the Act, which must be complied with when taking relevant disciplinary action and which must, as a minimum, be set out in the company disciplinary procedure:
Step One: Statement of grounds for action and invitation to meeting
The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.
A copy must be sent to the employee, inviting them to attend a meeting to discuss the matter.
Step Two: Meeting
The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.
The meeting must not take place unless:
- the employer has informed the employee what the basis was for making the allegations in the Statement of Grounds under Step One; and
- the employee has had a reasonable opportunity to consider his response to that information.
The employee must take all reasonable steps to attend the meeting.
The employer must inform the employee of his decision and notify him of the right to appeal against the decision.
Step Three: Appeal
If the employee does wish to appeal, he must inform the employer. The employer must then invite the employee to attend a further meeting. The employee must take all reasonable steps to attend the meeting.
The appeal meeting need not take place before the dismissal or disciplinary action takes effect. The employer must inform the employee of its final decision.
Essential Elements - The modified procedure
Where an employee is guilty of gross misconduct, a disciplinary policy should allow for summary dismissal.
It is almost always unfair to dismiss an employee without first making any investigation of the circumstances. However, in very rare cases it has been known for tribunals to rule that an instant dismissal was fair because the circumstances made an investigation unnecessary. This is the two-step, Modified Procedure.
Step One: Statement of grounds for action
The employer must prepare and send to the employee a written statement setting out what the employee has done, or failed to do, which has resulted in their dismissal. The employee must be informed of their right to appeal.
Step Two: Appeal
If the employee wants to appeal they should inform the employer, who should then arrange an appeal meeting.
Following the appeal meeting the employer must inform the employee of its final decision.
There are few instances in which an employer should dismiss "on the spot" and employers would be wise to follow the Standard Procedure described above, even in the cases of more serious misconduct.
Essential Elements - General requirements and underlying principles
Part III Schedule 2 of the Act sets out the basic requirements that will apply at all stages of the procedures above:
- Each step must be taken without unreasonable delay
- Timing and location of meetings must be reasonable
- Meetings must be conducted in manner allowing both parties to express views
- At appeal meetings, (as far as is reasonably practicable) a more senior manager should represent the employer than the manager who held the first meeting.
Similarly, the underlying principles of the Act should be reflected in any company policy:
- No disciplinary action should be taken until an employee's case has been fully investigated
- The employee should always be advised in writing of the nature of the complaint and given the opportunity to state their case before any decision is made
- Written notice of the disciplinary hearing should be given to the employee at least one day before the date of the hearing
- The employee should have the right to be accompanied by a work colleague or trade union official
- A disciplinary hearing should be adjourned if further investigation is required
- No employee should be dismissed for a first breach of discipline except in cases of gross misconduct
- An employee must have the right to appeal against any disciplinary penalty imposed
- The procedure may be implemented at any stage if the employee's alleged misconduct warrants such action.
Best practice: Handling disciplinary problems - informal proceedings
The first priority should be to help the employee to improve their behaviour, making sure that they understand what they are doing wrong and what they have to do to come up to standard. Make a note of the date when the issue was discussed and what action was agreed, and then confirm this in writing to the employee.
Handling disciplinary problems - formal proceedings
Stage 1: Gather all the facts and give the employee notice
Find out facts quickly, collecting witness statements and relevant documents;
If the matter is serious, decide whether to suspend the employee to facilitate the investigation. Suspension should be on full pay and the employee should be provided with written notice.
Following investigation, if there is not enough evidence to proceed further, no action should be taken;
- If there is evidence of misconduct, consider whether an informal discussion or a disciplinary hearing is appropriate
- Give the employee written notice of the disciplinary hearing, outlining
- The nature of the complaint including all details of the alleged conduct or characteristics, or other circumstances
- Appropriate evidence / documentation
- The date, time and place of the interview
- Details of the employee's right to have a union representative or colleague present and to bring any witnesses
- Where appropriate, notice that dismissal is one of the penalties being considered.
Stage Two: The disciplinary hearing and decision
Ensure another manager is present to take notes and act as a witness. Introduce those present and explain the purpose of the interview.
Go through the main issues, allowing the employee to reply and question as appropriate. Listen carefully to the replies and make notes.
Allow the employee to call witnesses and make full statements if requested.
Summarise the evidence and adjourn the proceedings.
Consider company precedent prior to making a decision and review employee's own disciplinary record for unexpired warnings.
Consider whether further investigation is required.
Inform the employee in writing of the decision, the reasons for the decision, the penalty imposed and the employee's right to appeal.
Stage Three: The appeal hearing
Provide the employee with written notice of the hearing, details of who will be hearing the appeal and confirm their right to be represented by a trade union official or colleague.
Conduct the appeal in the same manner as the disciplinary hearing at stage two described above.
Treat the appeal as a re-hearing rather than a review of the management's earlier decision.
Adjourn to consider what action to take.
Inform the employee of the result in person and confirm the final decision in writing.
As the legislation was only recently introduced, there remain some grey areas:
- At what point does an appraisal or review become a disciplinary meeting?
- What constitutes "reasonable" in terms of notice, timing, date and location of meetings, as well as reasonable attempts to attend meetings?
- What constitutes an "unreasonable delay" in terms of taking each step under the procedure?
- How will appeal hearings work in small, single director or owner managed businesses where that director or owner is directly involved in the incident?
Follow the correct dismissal procedure as described above.
Make the most of the probation period before matters get too serious.
Always keep accurate records of disciplinary matters as they may be needed at tribunal.
Ensure those who will deal with issues on the front line are aware of the procedure and how to implement it.
- Employment Act 2002
- Employment Act 2002 (Dispute Resolution) Regulations 2004
- Employment Rights Act 1996
This note is for general guidance only and should not be relied upon without advice about your particular circumstances.