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To maintain proper and reasonable standards of conduct and performance it is necessary to have disciplinary procedures in place and, by law, employers must put their procedures in writing as part of the main terms and conditions of employment. The standard PBS staff handbooks and contracts of employment incorporate disciplinary procedures that are fair and reasonable and help employers comply with the  ACAS Code of Practice.

 

 

The Employment Act 2008 (the Act) introduced new provisions for dispute resolution in the workplace. As from 6 April 2009 employers and employees should comply with a relevant statutory code (the Code) or risk financial penalties if they end up before an employment tribunal. 

 

The Code has been produced by ACAS and applies when disciplinary, dismissal or grievance issues arise. It can be viewed, together with guidance notes at www.acas.org.uk/dgcode2009

 

To encourage compliance with the Code the Act gives employment tribunals the discretion to vary awards for unreasonable failure to comply with it or any of its provisions.  –  in the case of employers an increase of up to 25% on any awards made against them or in the case of employees a decrease of up to 25% from any award they receive

 

The Act also amends employment tribunal powers by which they may reach a determination without a hearing, makes changes relating to conciliation by ACAS and allows tribunals to award compensation for financial loss in certain types of monetary claim.. 

 

 

Procedures complying with the Code should be used in all disciplinary and dismissal proceedings unless there are justifiable reasons for not doing so. Each step should be taken promptly and the employer should not unreasonably delay meetings, decisions or confirmation of those decisions.

 

The formal framework of the procedures contained in the PBS standard staff handbooks can be modified by employers so long as they meet at least the minimum requirements of the Code. 

 

 

When an employer is faced with a possible disciplinary problem he must first collate all the available facts without unreasonable delay and, if appropriate, obtain statements from witnesses.  Where it appears the employee might be guilty of gross misconduct it may be desirable to suspend him or her during the investigation.  This will have to be on full pay and it should be made clear that the suspension is not a disciplinary action.

 

Note, however, that the Court has held that the suspension of an employee facing disciplinary procedures should not be a "knee-jerk reaction"even if the evidence does support the need for an investigation. To automatically suspend without considering all the options could be a breach of the employer's duty of trust and confidence.

 

In some cases an investigatory meeting with the employee may be required before proceeding to a disciplinary hearing. There is no statutory right for the employee to be accompanied to an investigatory meeting. 

 

If evidence is to be obtained from an informant it is important that correct guidelines are followed ( obtain from PBS “Informants evidence” )

 

Once the initial investigation is concluded the Employer has to decide whether to

1. drop the matter

2. deal with it informally

3. invoke formal disciplinary procedures

 

 

It is important to consider if an informal procedure might be most appropriate in cases of minor issues.  For example counselling, followed by an informal oral reprimand might be all that is needed to resolve the matter.

 

It is also very important that any informal approach is based on the minor nature of the issue and not as a method of treating one employee more leniently than another.  Consistent treatment between employees is vital.

 

Where the informal procedure is used the employee should be made fully aware of its purpose and told that no part of a formal disciplinary hearing will be involved.  In such circumstances the employee will have no entitlement to be accompanied to the hearing.

 

 

These procedures exist for cases of alleged misconduct and gross misconduct, examples of which are set out in the P.B.S standard staff handbooks. The procedures should be properly followed and the employer must be fair and reasonable at every stage of the disciplinary processes.

 

To justify disciplinary action for misconduct in a case of poor job performance the Employer must establish that the poor performance is something that the employee could put right on his or her own, once it is pointed out, rather than it being caused by incapability to do the job e.g. because of lack of skills, training or perhaps some medical condition (even one which could constitute a disability).  If a case of poor job performance arises then it is advisable for the Employer to seek advice from P.B.S. on the appropriate procedure to be adopted.

 

 

The allegation of misconduct/gross misconduct and its possible consequences should be notified in writing to the employee so that he can prepare a response for the disciplinary hearing. The employer should also provide copies of any written evidence including witnesses’ statements and a time and venue for the disciplinary hearing.  This should be held promptly whilst allowing sufficient time for the employee to prepare his response.

 

The employee should be informed of the right to be accompanied to the hearing and invited to make a “reasonable request” in accordance with the Code.

 

The employee should also be provided with advance notice of the employer’s intention to call relevant witnesses and asked to provide advance notice of any witnesses he intends to call. 

 

 

Hearings must be conducted properly and fairly. They should be convened without unreasonable delay whilst allowing the employee reasonable time to prepare his case.

 

The employee must be given the opportunity to be accompanied to the hearing as outlined in the Code.

 

At the hearing the employer should:

 

1. introduce all those present

2. ensure that if accompanied the parties understand the extent to which the companion can address the hearing (see the Code)

3. explain the complaint against the employee

4. go through the evidence that supports the complaint

5. allow the employee to set out his case and answer any allegations that have been made

6. allow the employee reasonable opportunity to ask questions, present evidence and call relevant witnesses

7. allow the employee to raise points about any information provided by witnesses

8. make written notes of relevant oral evidence and invite the employee to read and sign it as being a true record.

9. inform the employee that the decision will be notified in writing together with details of an appeal procedure 

 

 

 

After completing all investigations and holding the disciplinary hearing the first question for the Employer to ask himself is “based upon the established facts is it reasonable of me to believe that on the balance of probability this particular employee is guilty of misconduct or, perhaps gross misconduct”.

 

In reaching a decision the employer must only rely on current relevant factors and ignore such matters as expired disciplinary warnings. 

 

If it is decided that the employee is guilty, the next question is whether dismissal is a reasonable response to the misconduct proved or whether some lesser penalty is more appropriate (e.g. demotion or written warning) No employee must be dismissed for a first breach of discipline unless it involves gross misconduct.

 

In deciding the proper penalty to impose the employer might consider among the factors:

 

1 extent to which standards have been breached

                                                                             2    precedents

                                                                             3    the workers general record

                                                                             4    position

                                                                             5    length of service

                                                                             6   special circumstances that might justify an adjustment to the severity of the penalty

 

In cases of capability related to long term ill-health the Employment Appeal Tribunal (EAT) has held that length of service is not a factor to be taken into account when considering dismissal. In other words whatever the period of service all employees are entitled to be treated in the same way in any investigation prior to dismissal on the grounds of long term ill-health.

 

If it is decided that a written warning is appropriate then the recommendations in the Code should be followed with the employee being informed of such matters as the nature of the misconduct, the consequences of further misconduct and the timescale for any improvements required. The employee should also be told how long the warning will remain current.

 

Any dismissal is likely to be unfair if the employer has failed to dismiss employees for similar offences in the past unless there is justification for departing from past practice in the current case. Employers must adopt a consistent approach to the treatment of all employees and where there is different treatment for the same offence it is best to make the justification clear and properly recorded.

 

If the decision is made to dismiss the employee then correct procedures must be followed. (see Termination)  

 

Where on the evidence the employer concludes that an employee is guilty of gross misconduct instant dismissal normally follows, without notice or payment in lieu of notice. However accrued holiday pay should be paid.

 

Without unreasonable delay the employer should notify the employee of his decision in writing and if appropriate the nature of the misconduct and any penalty imposed. The process for appealing against the decision should also be clearly explained. 

 

 

Where employees wish to appeal against the employer’s decision they should do so without unreasonable delay by putting their grounds in writing and complying with the appeal procedures notified to them by the employer. 

 

The employer should convene an appeal hearing without unreasonable delay and notify the employee of the time and venue. The employee should also be reminded of the statutory right to be accompanied to the appeal hearing in the same way as applied to the disciplinary hearing. 

(See the Code)

 

Ideally the appeal should be heard by a manager who was not involved in the earlier disciplinary proceedings. Where this is not possible, however, the manager must clear his/her mind of what went before, concentrate on the grounds of appeal and reach an impartial and fair decision.

 

The employer’s decision on the appeal should be notified in writing to the employee as soon as possible.

 

 

 

Where the above procedures have failed to resolve a dispute between the employer and employee and a tribunal claim seems likely it may be suitable for pre-claim conciliation. This is a free service provided by ACAS and is available to either employer or employee. 

 

The first step is to contact the ACAS helpline on 08457 47 47 47 and an adviser will be able to identify whether the case is suitable for referral to the pre-claim conciliation service. If so you will be put in touch with a conciliator.

 

 

 

If the Employer is taken to an Employment Tribunal for unfair dismissal then to successfully defend proceedings it must be shown that the dismissal was reasonable.  Even if the Tribunal would have come to a difference decision on the evidence than did the Employer, provided the latter’s decision was “within the range of reasonable responses” it will be accepted by the Tribunal. If a fair dismissal procedure was not followed it is for the employer to show that he would have dismissed anyway.

 

However, if the employer loses the case and has unreasonably failed to comply with the Code or any of its provisions then the Tribunal has discretion to increase the award by up to 25%. 

 

Conversely, if a successful employee has unreasonably failed to comply with the Code then the Tribunal has discretion to decrease any award by up to 25%.

 

 

 

 

 

 

 

All PBS Information Sheets are designed to provide the detail you need to implement  best business and employment practices. They are not a detailed commentary on the current law and where advice is needed in a specific case you should contact PBS for expert consultation.

 

 

 

 

discipline