It should come as no surprise that your employment should be subject to acceptable conduct and satisfactory performance of your duties. Your employer's disciplinary policy is designed to encourage employees to achieve and maintain appropriate standards of conduct, attendance and job performance.
The disciplinary procedure should be fair to all and all employees should be treated consistently. For example if an employer is taking disciplinary action against you for alleged misconduct yet your colleagues do the same thing without action being taken against them by your employer then you would contend that your are not being treated fairly and may decide to raise a separate grievance about this. However, it must always be remembered that each case is considered on it's own facts.
A fair disciplinary procedure provides the employee with the chance to tell his or her side of the story and to explain what happened. The purpose of a disciplinary procedure is to resolve problems informally as far as possible without resort to formal sanctions.
Typically, disciplinary procedures do not form part of the contract of employment and are not contractually binding upon either you or your employer. However, there should be a company disciplinary policy in place that is readily accessible to you.
The ACAS Code of Practice sets down the minimum requirements and principles an employer should follow. Some of the key points are set out below:
- Your employer should conduct a reasonable investigation which may involve meetings with you or collecting evidence.
- You do not have a right to be accompanied (by a work colleague of trade union representative) at an investigation meeting with your employer, although some employer's may allow this in their own policy or may exercise their discretion and allow you to be accompanied.
- If you have been suspended (and this should really only be in cases of alleged serious misconduct), your period of suspension should be as brief as possible and your employer should make it clear that the suspension is not in itself a form of disciplinary action. Unless your contract states otherwise while suspended you should receive your normal pay.
- You should be informed in writing of any disciplinary issues. The letter should include the allegations of misconduct or poor performance and the possible consequences (including the risk of a dismissal where applicable). There should be enough detail for you to respond at a disciplinary hearing. Any written evidence used by your employer, including witness statements, should be provided to you with this letter.
- Your employer should arrange a disciplinary meeting without unreasonable delay, whilst still ensuring that you have time to prepare for the meeting. The letter inviting you to a meeting should also include notification of your right to be accompanied either by a colleague or a trade union representative. Only in circumstances where the disciplinary process could have an impact on your being able to continue working in your chosen profession are you able to have legal representation at a disciplinary meeting.
- The meeting should be attended by all the relevant people, and both you and the employer should give advance notice of any witnesses you intend to call. At the hearing your employer should explain the allegations to you and go through the evidence. You should then be allowed to set out your defence to the allegations, as well as to ask questions and to present any other evidence you may have, including witnesses.
- Your employer may decide to inform you of their decision at the hearing, but in any event, you should receive the decision in writing without unreasonable delay and you should be notified of your right to appeal.
- If misconduct or poor performance is established, a dismissal would only usually be appropriate if you have previously received a written warning and a final written warning. Gross misconduct can justify dismissal for a first offence, but the disciplinary procedure must still be followed.
- Where the outcome is a written warning, the warning should set out the nature of the misconduct or poor performance, the improvement required with a timescale or how long the written warning will remain on file, and what the consequences would be of any further misconduct or failure to improve within that period.
Appealing a Disciplinary Sanction
If you decide to appeal, this should be in writing and should specify the grounds of your appeal. The appeal should be heard without delay, where possible by a manager who has not been previously involved. You should be notified of your right to be accompanied to the appeal hearing by a colleague or trade union representative.
The outcome of the appeal should be sent to you in writing without unreasonable delay.
Whilst the ACAS Code for disciplinary procedures is not legally binding, employment tribunals can increase your compensation by up to 25 per cent if your employer has ‘unreasonably’ failed to follow the Code, or reduce compensation by up to 25 per cent where you have ‘unreasonably’ failed to follow the Code.
If you would like assistance with a disciplinary process you are going through, or you simply want more information about your rights, Ashby Cohen can help you. Please contact us for an initial free consultation.
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