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The trials and tribulations of the disciplinary process

5 min read

16 October 2014

The disciplinary process can be one of the most fraught areas of the employer – employee relationship to manage effectively. There are potentially many problematic human resource issues that can arise if the process is not handled sensitively and with due care.

Prime concerns are unfair or premature dismissal and potential recourse by the employee to the tribunal process. Correctly followed, an effective disciplinary procedure will ensure that the right staff are encouraged to improve before being sanctioned and therefore that the employer benefits from the best performance of the individual member of staff.

The principal objective of any good disciplinary procedure is to improve employee performance rather than to dismiss the member of staff following an incidence of misconduct. Employers should always be encouraged to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures, which sets out the rights and duties of the employee and how the employer should conduct the disciplinary process without falling foul of employment law. If the employee has been underperforming then this should fall within the realm of a capability review rather than the disciplinary system.

There are also, quite frequently, mitigating circumstances in the case of alleged employee misconduct. It is vitally important that before action is taken any personnel issues are handled sensitively and objectively and every effort is made to find out the root cause of the issue.

Similarly, absence because of ill health is not a disciplinary offence, unless the employer has some evidence that the employee is shirking. In that case, employers should follow an absence management process, rather than disciplining an employee who has been absent from work. It is essential to distinguish between capability issues that should be dealt with by performing a capability review and true disciplinary matters. Only allegations of misconduct should be dealt with in the course of a disciplinary process.

Before any disciplinary hearing is convened, the employer should appoint an investigator to look into 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.

The investigation 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 such as emails, notes or CCTV that 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 investigator should also explain to witnesses that they may be required to attend a disciplinary hearing. 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.

Where the case needs to progress to a disciplinary hearing, a separate disciplinary officer should be appointed to chair the disciplinary meeting, to ensure impartiality from the investigation process. An invite letter, outlining full details of the allegation, and the employee’s entitlement to be accompanied at the meeting, should be sent to the employee.

It is crucial that the disciplinary action taken is an appropriate response to the misconduct which has occurred. Therefore, before deciding whether to impose a disciplinary sanction and what sanction to impose (e.g. first warning, final warning, and dismissal) certain facts should be gleaned. Consideration should be given to what the employee did; the impact of their actions and any action previously taken in similar cases. In addition, the employee’s former disciplinary record should be taken into account. The ACAS Code recommends that employees should be given at least one chance to improve before a final written warning is given. Employers should only resort to dismissing the member of staff without giving prior disciplinary warnings for cases of serious misconduct.

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