Out-Law Guide | 01 Mar 2019 | 12:27 pm | 7 min. read
There are some basic issues to consider when disciplining employees fairly for misconduct, but employers should always be careful to comply with their own procedures if they have them. Employers should also follow the ACAS Code of Practice on Disciplinary and Grievance Procedures (16-page, 57KB PDF) which Employment Tribunals take into account when assessing the fairness of a dismissal. Failure to do so could result in any compensation awarded in a subsequent claim brought by the employee being increased by up to 25%.
An employer should follow a proper disciplinary process if it believes that an employee may be guilty of misconduct. As far as possible, the aim of the disciplinary procedure should be to improve conduct, rather than simply to punish wrongdoing. Sometimes it will be clear that an allegation of misconduct is being made. For example, if an employer believes an employee has been emailing trade secrets to a competitor, this is an allegation of misconduct and any action taken should be in line with proper disciplinary procedures.
If an employee is underperforming at work this should normally be treated as a capability issue and disciplinary action will rarely be appropriate. Instead, the employee should be taken through a capability process designed to improve performance.
Similarly, absence because of ill health is not a disciplinary offence, unless the employer has some evidence that the employee is malingering, and the employer should follow an absence management process, rather than disciplining an employee who has been absent from work. It is therefore essential to distinguish between capability issues which should be dealt with under a capability process and true disciplinary matters. Only allegations of misconduct should be dealt with by a disciplinary process.
Before any disciplinary hearing is convened, the employer should appoint an Investigator to investigate the allegations on the employer's behalf. The employer's disciplinary procedure may specify who this person should be, but wherever possible it should be someone relatively senior who will have an understanding of the issues.
Consideration may also be required as to whether suspending the employee is appropriate. This should not be a knee-jerk reaction, and proper thought should be given to whether suspension is required.
The investigation should be conducted without unreasonable delay before memories fade and should ascertain the facts with a view to recommending whether there is a disciplinary case to answer. The Investigator should speak to the employee concerned and to any witnesses and should review any documents and evidence, such as emails, notes, CCTV, which may be relevant to the allegations. Wherever possible any witness interviews should be conducted face to face. Statements should be taken and witnesses should be asked to sign and date them.
The investigation should be rounded and fair, and not biased in favour of establishing guilt on the part of the employee.
The investigator should also explain to witnesses that they may be required to attend any disciplinary hearing, although this is now rare. Once the investigator has completed the investigation they should report on whether they consider there is a disciplinary case to answer. It may be that the matter can be dealt with informally or that no action is necessary.
If the investigator recommends that there is a disciplinary case to answer, a disciplinary hearing should be convened without unreasonable delay while giving the employee proper time to prepare. The employer should appoint a senior employee to act as the chair of the hearing. The chair should be someone who has not been involved with, or acquainted with, the facts of the case and in any event should not have acted as the investigator.
The chair should be and be seen to be as impartial as possible. The employer's own disciplinary procedure, if it has one, may specify the person who should chair such a disciplinary hearing.
The chair should then write to the employee convening the disciplinary hearing, within any time limits specified in any internal procedure, providing:
The purpose of this letter is to ensure that the employee against whom the allegations have been made has a proper opportunity to put their side of the case and to respond fully to any allegations which are being made. This may require the attendance of the employer’s witnesses to answer questions from the employee, although in most cases it will be possible simply to use their statements.
In cases where a witness does not want to be identified and does not therefore want to attend the hearing to give evidence (such as if the matter is extremely sensitive or the witness fears for their safety), it may be possible to use anonymised witness statements. However, as this will limit the employee’s ability to question the evidence, employers should be wary of going down this route and should seek legal advice.
At the hearing, the chair should:
After they have heard all the evidence the chair should consider their decision. If the chair has reached an honest belief in the employee's misconduct based on reasonable grounds, then disciplinary action may be justifiable.
It is important that the disciplinary action taken is proportionate to the misconduct which has occurred so before deciding whether to impose a disciplinary sanction and what sanction to impose, such as first warning, final warning, dismissal, the chair should consider carefully all the background to the case, including what the employee did; the impact of their actions; any action previously taken in similar cases; and the employee's former disciplinary record. Employers should only dismiss without giving prior disciplinary warnings for cases of very serious misconduct.
The chair should also carefully consider whether any other action, such as training, might be more appropriate than disciplinary action.
Unless the employer's own procedure specifies otherwise, the chair does not have to give a decision at the hearing and it will usually be appropriate to adjourn to consider the decision. In any event, the chair should write to the employee within any specified time limits to inform them of the decision which has been made. If the chair has decided that disciplinary action is required, the letter should also give the employee details of the right to appeal against the decision. The employee should be told to whom such appeal should be directed and any relevant time limits.
The employee should be given a right of appeal against any disciplinary decision. Indeed, appeals can be a very useful tool for employers who may have made mistakes in the early stages of a disciplinary process, to remedy any errors they have made.
Once the employer has received an appeal from an employee they should appoint a chair to hear the appeal. The appeal chair should, wherever possible, be someone who is senior to or at least as senior as the original chair and ideally they should not have been previously involved in the matter concerned. Unless any new evidence or circumstances have come to light since the original investigation, it will not normally be necessary to hold a fresh investigation. Rather, the appeal chair should review the original Investigator's report and all the documents relating to the case. He should then invite the employee to an appeal hearing without unreasonable delay to discuss the grounds of the appeal. Again, the appeal chair should write to the employee specifying:
At the appeal hearing the appeal chair should ask the employee to explain the grounds of the appeal and to introduce any new evidence that has come to light. The original decision-maker should be asked to comment and to explain the reasons for the original decision.
Once the appeal chair has decided whether or not to uphold the appeal, he should write to the employee giving his decision and specifying whether or not the employee has any further opportunity to appeal. If the company's internal procedures give employees this right those procedures should be followed.