Dealing with disciplinary matters can often be daunting and difficult for managers and business owners to deal with, which often ends up in mistakes being made.
Poor or inadequate training could however lead to fatal consequences, as the employee may have grounds to raise a claim against their employer on the basis that a fair and substantive procedure was not followed.
We therefore strongly urge clients to ensure that their managers, or whomever is handling a disciplinary is fully aware of what the process entails, what the purpose of the process is, and what legally could derail the process.
We have therefore put together the key DOs and DON’Ts that clients should be aware of;
1. DO make sure you have all your evidence before commencing the process – this means that the person who is dealing with the disciplinary must undertake a full and thorough investigation to ensure they have a genuine belief in the employees involvement in events, before proceeding to a full disciplinary. If you don’t have enough evidence, it is questionable whether any disciplinary action would be reasonable.
2. DO make sure you give the employee fair and reasonable opportunity to put forward their version of events, in relation to each allegation raised against them. It is best practice to ask the employee to compile a witness statement of their version of events before or after the meeting, to assist a managers understanding of the employees position. Employees maybe nervous or feel intimidated in a meeting environment and therefore may not present the best possible case to you.
3. DON’T simply accuse the employee outright in a meeting, as this will automatically create an intimidating environment. Be sure to outline all allegations to the employee at the start of the meeting, in line with the allegations you have stated on the invitation letter. Further it will mean you have failed to comply with point 2 above, which could be considered a breach of the ACAS code of practice, which may render the disciplinary procedure automatically unfair, and therefore merit less. The reason for having a disciplinary meeting is to discuss the evidence which has been discovered during the investigation and give the manager an opportunity to discuss and hear further evidence before making a decision regarding the matter. Even the most clear cut cases should be dealt with in this way, as the manager must be seen to reasonably assess all the evidence before making a decision, so that the decision is not preconceived.
4. DO – read the ACAS code of practice, and have a copy within the meeting, so that managers are fully aware of what is expected of them.
5. DO – Ensure that someone who is not involved in the case is appointed to take notes on the proceedings, making sure that these are full and thorough, as far as possible. Employees should be given the opportunity to read the minutes through at the end of the meeting, and initial each page to demonstrate their agreement that the minutes are an accurate reflection of what has been discussed in the meeting. The employee should then be given a copy of the minutes for their records. If the employee consents, it might be easier to record the meeting digitally and have the minutes typed out afterwards.
6. DON’T – make a decision at the meeting, as it may make the decision seem predetermined. Conclude the hearing or adjourn it if new matters are raised that need investigating. If your manager has any questions it would be advisable to contact Lawgistics to discuss what has happened.
7. DON’T – forget the employee has the right to be accompanied to the meeting by either a trade union representative or a work colleague. Friends, Family and legal representatives are not prohibited without your express permission. Any people who are connected with the disciplinary action cannot be called as a witness. If an employee turns up to a hearing without a witness because they do not want one present, managers should make a record of this for the purposes of the minutes, so it is clear that the employees rights have not been infringed.
8. DON’T – have a meeting as soon as your discover an issue, as none of the content of the meeting will be admissible as evidence. You must follow the correct process by inviting the employee to a meeting, in writing first, and outline to them all allegations you intend to discuss at the meeting. You should also make the employee aware that as a result of the meeting, they may face disciplinary or dismissal. Template letters are available to download from our website. You should give a minimum of 24 hours notice before holding the meeting, we advice if it is not a gross misconduct issue, then 48 hours is more suitable. This gives the employee time to collect their thoughts and also to make suitable arrangements for a witness.
9. DO – discuss with the employee in the meeting why you have brought them into the meeting and make it clear why their behaviour has been considered unacceptable and thus had the potential to be a disciplinary offence. The purpose of these meetings is also to educate the employee to try and prevent further conduct from occurring.
10. DO – communicate your decision to the employee in writing, clearly outlining the reasons for the decision and what that means moving forward. This could be targets set to improve performance if the disciplinary was relating to poor performance or conduct. It should be noted on the outcome letter how long any warning will remain on the employee’s record for, or if the result is dismissal, when the employees last working day will be.
11. DON’T – suspend for the sake of suspension. This should only be used when it can be justified that the employee is a risk to the business, or to members of staff. For example if the allegations relate to fraud, or theft, there is a justifiable risk that the employee should not continue to deal with money or be in an environment where they have access to money. Further, if the allegation relates to an attack on an employee, either verbally or physically then, for the safety of the other employees it would be reasonable to not have that person present in the workplace whilst an investigation takes place. Remember that unless you have an express clause in your contract, all suspension must be on full pay.
12. DO – take witness statements from other members of staff who were involved or witness to an incident. This will form a vital part of any investigation, and employees who make statements should be aware that they will not be prejudiced if they make them. These statements must be in the employees own words, and signed and dated by the individual. The company cannot write statements on behalf of employees and get them to sign them. This would be a breach of the ACAS code.
13. DO – make sure you give the employee the right to appeal any decision that has been made. This appeal right must be highlighted in the disciplinary outcome letter (templates are available on our website) and an independent manager, owner, or senior member of staff should be denoted as the person the employee can appeal to, and should be someone who has not previously dealt with the disciplinary hearing. The employee should be given a reasonable timescale in which to raise their appeal. We recommend a minimum of 7 days. If an appeal is raised, the manager involved must follow the same process as outlined above, beginning with a full investigation into the points raised in the appeal. Once the process has been followed, again a full explanation as to the reasons for the appeal a decision should be outlined, whether the appeal is successful or not.
14. DON’T – sack someone on the spot, or in the heat of the moment. Even if you have a fair reason for dismissal, it will automatically be procedurally unfair and therefore you may be in trouble.
15. DON’T – answer questions you don’t know the answer to. If a manager is unsure of anything, they can call for a short recess and check their facts before answering. Alternatively they can call Lawgistics if they have an issue.