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Employment Law Top Five: Practical tips for employers conducting disciplinary proceedings

31/03/2021

From multinationals to start-ups, businesses of all sizes need to be in a position to effectively manage disciplinary situations, not only to avoid costly employment disputes but also to maintain a motivated and efficient workforce.

The type of disputes that most commonly arise out of disciplinary proceedings are claims of unfair dismissal, which can include constructive unfair dismissal where employees feel that proceedings have been so badly handled by the employer that it breaches the implied term of trust and confidence. However, claims of discrimination can also be triggered where employees are treated less favourably on grounds of a protected characteristic such as sex or race; or where the employer has failed to make reasonable adjustments to the process for an employee with a disability.

Here we share our top five practical tips for employers when conducting disciplinary proceedings, whether that be in relation to misconduct or poor performance.

*N.B. This article does not deal with the handling of capability or performance issues that relate to ill health.

1. Be proactive

All too often, employers avoid raising concerns or giving honest feedback to employees on issues when they first arise. This can lead to problems when an employer suddenly decides that it wants to deal with an ongoing issue formally because:

  • the employee had not been aware the issue was a problem for the employer and therefore reacts badly when they are confronted with a disciplinary process that, from their perspective, has come out of the blue; and/or
  • the longer an issue is allowed to go on without the employer mentioning it, the more likely the employer may be deemed to have accepted the level of conduct or performance, and therefore the more likely it will be considered unfair to suddenly approach it as a formal disciplinary issue.

Employers should therefore discuss more minor issues of misconduct or performance with employees at the earliest possible time in order to reach an informal resolution. Depending on the nature of the issue, employees should be warned that any repeat or failure to improve could result in formal disciplinary proceedings.

Any informal warnings should be explicitly verbal and should not be confirmed to the employee in writing or placed on their disciplinary record (doing so will risk such warnings being viewed as formal in the event of a disciplinary procedure). Line managers can however keep a note of their informal discussions as evidence that an informal warning has been given.

2. Have a well drafted disciplinary procedure

It is important that those responsible for dealing with misconduct and performance issues understand the steps that they have to take when conducting disciplinary proceedings. It is also important that employees are clear as to how such matters will be dealt with.

This means having a clear disciplinary procedure that takes account of the following:

  • The principles of fairness set out in the ACAS Code of Practice on Disciplinary and Grievance Procedures.
  • The principles involved in achieving a fair dismissal for unfair dismissal purposes (where dismissal is a potential outcome).
  • How the above principles can be applied within the context of the employer’s structure.

Difficulties can arise when using an ‘off the shelf’ disciplinary procedure has not been tailored to an employer’s own particular circumstances, as it can find itself unable to comply with steps set out in its own procedure that were drafted for an organisation of a very different size and structure.

It is also important that (1) the disciplinary procedure is clearly stated to be non-contractual, so that the employer has the ability to adapt it in relevant situations (for example, where an employee has a disability or is still in their probation period); and (2) that those responsible for handling disciplinary matters are aware of the procedure and receive any necessary training to be able to apply it in practice.

3. Be clear about the allegations or employee performance issue

One of the most important principles of fairness when dealing with either misconduct or performance issues is that the employer must inform the employee of the allegations against them. This is because the allegations will determine the scope of any investigation required; and more crucially, ensure that the employee is clear of the case against them so that they have the chance to respond before any decision is made in relation to disciplinary action or dismissal.

It is therefore important that careful consideration is given to framing the allegations at the outset. If, as with most cases of misconduct, an investigation is necessary, it may be that the allegations are amended once further details have come to light from the investigation.

4. Only suspend an employee where necessary

Suspension is generally only relevant in the context of misconduct. However, even then, it is all too often the result of a knee jerk reaction from the employer when dealing with serious misconduct.

Automatically suspending employees in this way, without considering whether it is really necessary, increases the risk of an unfair dismissal or constructive unfair dismissal claim on the basis that it might (1) show that the employer pre-judged the guilt of the employee; or (2) be evidence to support unfair treatment (and potentially, a constructive dismissal) of the employee, particularly when dealing with a senior employee for whom suspension generally has a greater impact.

Employers should only suspend employees in the following circumstances:

  • where remaining in the workplace would represent a threat to the business or other employees;
  • where remaining in the workplace would prevent the employer form undertaking a proper investigation; or
  • where there has been a breakdown of the employment relationship.

In all of these cases an employer should still consider if there are options open to it, such as temporarily moving the employee to a different department or site; and ensure that suspending the employee is consistent with its treatment of other employees in similar situations.

If an employer does decide to suspend, it should ensure that:

  • it has the contractual right to do in the employee’s contract of employment; and
  • that it does so on full pay.

5. Keep a record

Written evidence (particularly if it is contemporaneous with events) is powerful in the context of any appeal or claim arising out of disciplinary proceedings. Employers should therefore ensure that they keep a record of all stages of a disciplinary process, including:

  • Details of the allegations against the employee;
  • Details of the investigation and any evidence gathered;
  • Copies of all correspondence with the employee;
  • Notes from the disciplinary meeting and a copy of the outcome letter;
  • Where it is not already recorded in the above documentation, notes of the rationale for decisions taken at the various stages of the process (e.g. the decision to initiate formal proceedings; any decision to suspend; the decision to hold a disciplinary meeting where this was dependent on an investigation; and the decision as to the level of discipline or dismissal).

This article should not be relied upon as a substitute for professional legal advice. If you are an employer seeking legal advice on a particular matter or employment circumstance, please contact Deborah West by emailing [email protected] or by completing the form below. 

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