Your employees’ employment with you is subject among other things to satisfactory conduct and performance of their duties. Your disciplinary policy is designed to help and encourage them to achieve and maintain appropriate standards of conduct, attendance and job performance.
The procedure should be designed to be fair to all and to ensure that everyone has a chance to put his/her side of the case when a disciplinary matter arises. Its intention is to resolve problems informally as far as possible without resorting to formal sanctions. Disciplinary procedures generally do not form part of the contract of employment and are not contractually binding upon either you or your employee. However, there should be a company disciplinary policy in place that is readily accessible to your employees.
There are guidelines on disciplinary procedures set down by ACAS as follows:
- You should conduct a reasonable investigation which may involve meetings with the employee or collecting evidence. If you have suspended your employee, this should be as brief as possible and you should make it clear that the suspension is not in itself a form of disciplinary action.
- You should inform the employee of the issues in writing. 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 the employee to respond at a disciplinary hearing. Any written evidence used by you, including witness statements, should be provided to the employee with this letter.
- You should arrange a disciplinary meeting without unreasonable delay, whilst still ensuring that the employee has time to prepare for the meeting. The letter inviting the employee to a meeting should also include notification of their right to be accompanied either by a colleague or a trade union representative.
- The meeting should be attended by all the relevant people, and both you and the employee should give advance notice of any witnesses you intend to call. At the hearing you should explain the allegations and go through the evidence. Your employee should be allowed to set out their defence to the allegations, as well as to ask questions and to present any other evidence they may have, including witnesses.
- You may decide to inform the employee of your decision at the hearing, but in any event, you should set out your decision in writing without unreasonable delay and notify the employee of their right to appeal. If misconduct or poor performance is established, a dismissal would only usually be appropriate if they 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, 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.
If the employee decides to appeal, this should be in writing and should specify the grounds of their appeal. If they issue proceedings in an employment tribunal without appealing, their compensation award may be reduced. The appeal should be heard without delay, where possible by a manager who has not been previously involved. The employee should be notified of their right to be accompanied to the appeal hearing by a colleague or trade union representative.
The outcome of the appeal should be sent to the employee in writing without unreasonable delay.
Whilst the ACAS Code for disciplinary procedures is not legally binding, employment tribunals can increase your employee’s compensation by up to 25 per cent if you have ‘unreasonably’ failed to follow the Code, or reduce compensation by up to 25 per cent where the employee has ‘unreasonably’ failed to follow the Code.
If you would like more detailed information about conducting a disciplinary process, or have any quries about disciplinary policies, Ashby Cohen can help you. We specialise in employment law cases, and our years of experience as employment lawyers make us uniquely qualified to assist you with any disciplinary issues you may have. Please contact us for an initial free telephone consultation.
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