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Disciplinary dismissal procedures: What you need to know

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Employment law
Barrister Charles Price provides an example of a correct disciplinary and dismissal procedure, discusses what is required in law, and explains the new statutory procedures.


A disciplinary policy is vital if an employer is going to treat employees fairly. If the procedure is not adhered to then an employee can quite fairly complain of unequal treatment and can claim compensation if the correct procedures are not followed.

A disciplinary procedure should not be invoked for issues of capability. If you have an under-performing worker, his/her behaviour should be seen quite distinctly from a disciplinary matter unless there is intentional disobedience or obstruction.

The new statutory disciplinary and grievance procedures are notoriously complex, but consist of four vital elements:

  • A written invitation to a meeting (when disciplinary sanctions are contemplated)

  • The chance of being accompanied

  • The employee being given details of the allegations against him/her before the meeting

  • The chance of an appeal

If an employer decides to dismiss an employee summarily, then an important factor for the tribunal to consider when deciding if the dismissal was fair is whether the employee knew that the misconduct in question constituted ‘gross’ misconduct.

Examples of gross misconduct

  • Serious dishonesty, including theft

  • Misuse of company property

  • Accessing pornography on a web site

  • Bullying and harassment of fellow employees (see below for definitions)

  • Violent behaviour or repeated instances of swearing

Harassment is defined as: “Unwanted conduct affecting the dignity of men and women in the workplace”. It may be related to age, sex, sexual orientation, race, disability, religion, nationality or any personal characteristic of the individual, and may be persistent or an isolated incident.

It is important that, where possible, staff are trained in what can constitute harassment especially in the light of new laws which mean it is more likely that employers can be sued for the actions of their staff.

Bullying is defined as: “Offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient”.

Bullying or harassment may be by an individual against an individual (perhaps by someone in a position of authority such as a manager or supervisor) or involve groups of people. It may be obvious or it may be insidious. Whatever form it takes, it is unwarranted and unwelcome to the individual.

Examples of bullying/harassing behaviour include:

  • spreading malicious rumours, or insulting someone by word or behaviour (particularly on the grounds of race, sex, disability, sexual orientation and religion or belief)

  • copying memos that are critical about someone to others who do not need to know

  • ridiculing or demeaning someone — picking on them or setting them up to fail

  • exclusion or victimisation

  • unfair treatment

  • overbearing supervision or other misuse of power or position

  • unwelcome sexual advances — touching, standing too close, the display of offensive materials

  • making threats or comments about job security without foundation

  • deliberately undermining a competent worker by overloading and constant criticism

  • preventing individuals progressing by intentionally blocking promotion or training opportunities

In dealing with issues of misconduct, the emphasis is on encouraging the informal reinforcement of appropriate conduct; this is pursued through counselling and informal warning stages. Where these stages are inappropriate the formal Disciplinary Procedure will be followed.

Disciplinary matters shall be treated with the highest degree of confidentiality and the circumstances of disciplinary cases shall not be discussed with anyone who does not have a need to know about them.

The nature of allegations and purpose of all meetings in a disciplinary context will be made clear to staff. The individual who has faced a sanction at a disciplinary has the right of appeal to the next level of management at each formal stage of the procedure.

Appeals against dismissal will normally be heard within four weeks of receipt of the letter of appeal.

Investigation process:

It is important when initiating a disciplinary procedure to make sure the investigating officer is separate from the disciplinary officer and the appeal officer is again different. Further, to avoid accusations of collusion, those three officers should avoid talking about the evidence unless it forms part of a formal stage under the disciplinary policy. If these basics are not adhered to you will face a decision of unfair dismissal on the basis of the improper procedure being followed.

Once the disciplinary process has been initiated, investigations are conducted by the employee’s line manager, as long as that person is not directly involved in the alleged incident(s). If the manager is involved in the incident(s) in question then the investigation should be undertaken by another manager of equivalent or higher grade.

In a disciplinary hearing, the manager carries out a preliminary investigation and refers his/her findings, including any witness statements and written evidence to the executive. The investigating officer will be a different person from the disciplinary officer.

Interview:

  • All relevant facts are gathered such as personal details; length of service and absence records.

  • If the misconduct merits it – contact outside agencies such as police.

  • Witness statements and other documents are collected.

  • Previous informal or formal disciplinary action and current warnings are considered but all spent warnings should be discounted.

  • The executive considers whether the matter can be resolved informally i.e, with further training, counselling.

  • Review dates are set to establish whether the conduct, performance or attendance issues have been resolved.

Suspension:

This is not a disciplinary sanction but a chance for evidence to be collected. All investigations must be seen to be thorough if a dismissal can be deemed fair.

Interviewing all witnesses involved should be the starting point. Suspension should be on full pay. If an individual is dismissed on the spot then there is no need for suspension but only should be done in extreme circumstances. It is advisable for legal advice to be taken before an employee is dismissed.

The employee is advised of suspension – normally in person, and then confirmed in writing. Suspension should be kept to a maximum of six weeks.

Formal interview preparation:

  • Give notification in writing to the employee informing them who will be attending (usually manager and HR manager)

  • Allow reasonable notice in order for the employee to prepare their case.

  • Inform the employee that they are entitled to be accompanied by a work colleague or union official.

  • Provide a copy of this procedure and send them any witness statements, asking them to inform you whether they accept the details as fact – therefore, it would be unnecessary to call those witnesses.

  • If witness statement is in dispute – witnesses should be available to attend the interview and present their statement.

  • Ask employee to provide any papers they wish to be considered (two days prior to interview).

  • Formal interview should happen within six weeks of the event.

  • A meeting room must be booked for the formal interview as well as a quiet area for any witnesses.

  • Minutes should be taken of the interview for use as case summary in the event of any appeal.

The purpose of the disciplinary interview is to clarify the allegations and evidence in the presence of the employee and therefore give the employee and/or their representative the opportunity to respond to the allegations and evidence and to explain any mitigating factors – then reach a conclusion. The following procedure occurs:

  • Outline the nature of the misconduct or incapability.

  • Introduce the evidence including witnesses to be considered.

  • Witnesses may be called by both sides and cross questioning will be allowed.

  • At the conclusion of the disciplinary interview, the manager will adjourn the proceedings to consider their conclusion and the action (if any) appropriate to the circumstances.

Disciplinary Actions

In deciding to impose any disciplinary penalty, in accordance with these procedures, an authorised manager must always act in good faith, reasonably and honestly believe in the guilt of the employee, and have had regard to all mitigating circumstances, including the employee’s service record.

There are four options for formal disciplinary action:

Stage 1: Oral Warning
Appropriate in cases involving offences other than gross misconduct, where the nature of the offence is minor and/or isolated and where the employee has no current oral warning. Also known as verbal warnings. This will stay on record for six months.

Stage 2: Written Warning
Appropriate in cases involving offences other than gross misconduct, where the nature of the offence is more serious than would warrant an oral warning, where more than one offence is involved, or where there is a current oral warning on file. This will stay on the record for nine months.

Stage 3: Final Warning
Appropriate where there is a current written warning on file or when misconduct is considered to be insufficiently serious to justify dismissal but sufficiently serious to warrant only one written warning, which in effect will be both first and final. This will stay on the record for one year.

Stage 4: Dismissal
Appropriate in cases involving misconduct where there is a current warning(s) on file and, in cases of gross misconduct, where all the evidence indicates that any other action short of dismissal would not be appropriate. An employee may be summarily dismissed (i.e. dismissed without notice or a payment in lieu of notice) only in the event of gross misconduct.


Implementing the action

The employee should be advised of the outcome immediately after the adjournment or as soon as possible thereafter. In any event, written confirmation of a decision, involving written warnings will be sent to the employee within seven days of the verbal notification of the decision.

Appeals procedure

The appeal should be heard by a manager divorced from the disciplinary process so far.

The appellant should set out their grounds of appeal in writing, clearly stating how their appeal relates to one or more of the following:

  • Any breach of procedure

  • The finding of misconduct/incapability – specifying those matters that were wrongly determined at the earlier stage

  • New evidence that materially affects the earlier decision has become available – provided that the employee was unable to introduce that evidence at the earlier stage

The appeal will review the earlier decision, taking account of the grounds of appeal. It shall not rehear the case. The appeal can overturn the earlier decision or impose a lesser sanction. Appeal decisions will be final.

One Response

  1. Discipline-Practical + Law
    Sorry Charles but you have fallen below your normal high standard.
    Firstly there is no need to separate capability and conduct into separate procedures. It may be fashionable, especially in the public sector to go for this artificial division but has no real basis in law. What matters is whether the matter was handled properly in terms of investigating the cause and remedy for the incapability. This can be done properly within the constraints of a proper disciplinary procedure but with a difference of emphasis where appropriate. As Charles identifies there may well be a crossover in reality between capability and conduct which makes trying to separate human behaviour into two distinct boxes highly artificial.
    Again in an ideal world(and depending on the nature and seriousness of the conduct)you may try to separate the processes of investigation and diciplinary action into two phases under two different people, but there is no legal requirement to do so. In my sadly comprehensive experience there are rarely two distinct phases and it may not be possible/appropriate to have two different people undertaking different tasks at different times especially in the SME sector. I seem to spend rather too much time baffling my clients with questions about how they might do this before concluding that it cannot be done. The important thing is to try to separate the processes as far as possible without setting up artificial distinctions.
    One final point; unless you work in the public sector, try to not suspend people for more than 6 days, it is costly and inhuman.

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